1. No category

CONTINUING LEGAL EDUCATION
MATERIAL
PANEL III:
ROUNDTABLE: FORGING NEW PATHS FOR
OUR FUTURE
Speakers
• Melynda Barnhart (Moderator), Professor of Law,
New York Law School
• Denise Brennan, Professor of Anthropology,
Georgetown University
• Kathleen Kim, Professor of Law, Loyola Law School,
Los Angeles
• Kate Mogulescu, Supervising Attorney, Trafficking
Victims Advocacy Project, Legal Aid Society
• Ivy O. Suriyopas, Director of Anti-Trafficking
Initiative, Asian American Legal Defense and
Education Fund
• Juhu Thukral, Director of Law and Advocacy, The
Opportunity Agenda
155
156
ARTICLE
KEY ISSUES IN THE RESETTLEMENT OF FORMERLY
TRAFFICKED PERSONS IN THE UNITED STATES
DENISE BRENNAN
†
INTRODUCTION ....................................................................................1581!
I.
METHODOLOGY AND DESCRIPTION OF T VISA RECIPIENTS ..........1587!
II. FINDING TRAFFICKED PERSONS AMIDST
EVERYDAY EXPLOITATION ............................................................1589!
III. LIFE AFTER TRAFFICKING .............................................................1595!
A. Trust and Social Networks of Coethnics ................................1595!
B. Posttrafficking Experiences in the Labor Market ....................1600!
C. Women in Forced Sexual Labor ............................................1603!
D. Friends, Romantic Partners, and
Community-Based Organizations .........................................1604!
E. Assistance to and from Family Members ................................1606!
CONCLUSION........................................................................................1607!
INTRODUCTION
Carmen came to the United States with an Ecuadoran family for
1
whom she had been working as a child-care provider and domestic.
†
Associate Professor of Anthropology, Georgetown University. I am grateful to the
Woodrow Wilson International Center for Scholars, the Henry Frank Guggenheim
Foundation, the American Association of University Women, the Center for Democracy and the Third Sector at Georgetown University, and Georgetown University’s Summer Academic Grant program for providing support for field research and writing.
1
I have changed the names of all the T visa recipients, such as Carmen, throughout this Article. Nor do I identify names of social service organizations (or specific social workers or case managers) that oversee the resettlement of formerly trafficked persons. Additionally, in some cases I do not make clear exactly where someone lives now
or where specifically she/he had been in forced labor. Rather, at times I write general-
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Although they had treated her fairly in Ecuador, the wife, explains
Carmen, “turned into the devil” once they got to the United States.
They did not pay her, took her passport, forbade her from leaving the
house, kept food from her, and forced her to sleep in the children’s
room. A neighbor suspected that Carmen was being held against her
will and contacted the police. The police, aware that Carmen’s case
may qualify as “trafficking,” called a large social service provider whose
social workers oversaw her care and whose lawyers began to put together Carmen’s application for a T visa. The U.S. Citizenship and
Immigration Services (USCIS) eventually determined that Carmen
2
had been “trafficked.” After initially living in a domestic violence
shelter, Carmen lived in a series of apartments that she shared with
other migrants to the United States. Her daily concerns were like
those of her migrant roommates working low-wage jobs: how to pay
bills while also sending remittances to her parents; how to find time to
attend ESL classes while she worked the night shift cleaning hotel
rooms; and how to make new friends so far from home. As someone
who was designated “trafficked,” however, aspects of her life were difly of “a social worker in New York” who helped “resettle a woman who was trafficked to
the Midwest,” so that it is not easy to identify the case about which I am writing. However, I name migrant-rights organizations (with their permission) as part of their organizing strategy to get the word out about their issues and programs.
2
The Trafficking Victims Protection Act of 2000 (TVPA) defines “severe forms of
trafficking in persons” as follows:
(A) sex trafficking in which a commercial sex act is induced by force, fraud, or
coercion, or in which the person induced to perform such an act has not attained 18 years of age; or
(B) 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.
Pub. L. No. 106-386, § 103(8), 114 Stat. 1466, 1470 (2000) (codified in scattered sections of 18 and 22 U.S.C.). A recent State Department report notes that “[a] victim
need not be physically transported from one location to another in order for the crime
to fall within these definitions.” U.S. DEP’T OF STATE, TRAFFICKING IN PERSONS REPORT
6-7
(2009),
available
at
http://www.state.gov/documents/organization/
123357.pdf. A nonimmigrant T visa is available to a person “who (1) is a victim of a
severe form of trafficking in persons; (2) is physically present in or at a port-of-entry to
the United States (as defined in the immigration laws), American Samoa, or the
Commonwealth of the Northern Mariana Islands on account of human trafficking; (3)
has complied with reasonable requests for assistance in the investigation and prosecution of acts of trafficking or is less than 18 years old; and (4) would suffer extreme
hardship involving unusual and severe harm upon removal.” 2009 ATT’Y GEN. ANN.
REP. TO CONGRESS & ASSESSMENT OF U.S. GOV’T ACTIVITIES TO COMBAT TRAFFICKING IN
PERSONS FISCAL YEAR 2008, at 34, available at http://www.justice.gov/
ag/annualreports/tr2008/agreporthumantrafficing2008.pdf [hereinafter A TT’Y GEN.
2008 TRAFFICKING REPORT].
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Resettlement of Formerly Trafficked Persons
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ferent from those of her roommates. She enjoyed benefits they did
not, such as eventual legal status through a T Visa, health care (for
about a year), and the support of a case manager with whom she still
3
stays in touch. Yet, even with these benefits, Carmen and other T visa
recipients still struggle. Like many migrants, they work in low-paying
and insecure jobs. These positions are usually the only work that they
can find with limited formal education, English-language skills, and
social networks.
This Article, along with the larger book project of which it is a
4
part, examines how individuals who have been in forced labor in the
5
United States rebuild their lives. This research focuses on the struggles and successes with the everyday tasks of resettlement of persons
whom the U.S. government has officially recognized as having been
trafficked. It asks how these individuals, whose lives were controlled
by violence or threats of violence, regain control of their lives and begin the process of resettlement in the United States. I explore ways in
which they confront the same daily challenges in their resettlement as
their fellow migrants as they build new lives in a new country. Yet, I
also ask how the intrinsic violence of trafficking into forced labor—
which subjects individuals to a profound loss of control over their
lives, including where and when they eat, sleep, and work—shapes the
course of their resettlement.
While many formerly trafficked persons who experienced human
rights abuses warily engage new situations and friends, the individuals
I have met are committed to making a life in the United States and to
crafting ways to improve the conditions of their lives and those of
their families back in their home countries, albeit to different degrees
and in different ways. Their interest in finding jobs soon after their
escape or rescue is particularly striking. Formerly trafficked persons
seek to work right away and strive to build new networks of friends
and colleagues, behaviors that challenge the simplistic media portray3
“The TVPA authorizes the ‘certification’ of adult victims to receive certain federally funded benefits and services, such as cash assistance, medical care, food stamps,
and housing. Though not required to receive certification, minors who are found to
be victims receive ‘Eligibility Letters’ from [Health and Human Services] to obtain the
same types of benefits and services.” ATT’Y GEN. 2008 TRAFFICKING REPORT, supra note
2, at 10.
4
The book is tentatively called, Settling In: Life After Trafficking into Forced Labor in
the United States.
5
Since the term “trafficking” has been misused—often with sensational effect in
the media—I use the term forced labor throughout the Article (unless I am referring
to the legal term “trafficking”).
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[Vol. 158: 1581
als of “trafficking victims” as passive dupes that make easy prey for
6
traffickers. Work is the reason they came to the United States in the
7
first place and finding new jobs after forced labor allows them to carry out the plans their exploiters interrupted. This Article thus pays
particular attention to ways formerly trafficked persons forge plans to
get ahead economically as they settle into new communities.
Yet, even after they leave situations of forced labor, these individuals risk reexploitation. This Article emphasizes that labor exploitation structures not just the lives of individuals in forced labor, but also
the lives of migrants working in low-wage sectors. The theoretical
framework of this Article follows a central premise around which the
Coalition of Immokalee Workers (CIW), an agricultural workers’
membership-based advocacy organization in Immokalee, Florida, or8
ganizes both its farmworkers’ rights and antislavery campaigns. I situate trafficking along a continuum of exploitative labor practices that
9
migrants experience in work sites throughout the United States.
Through this particular examination of extreme abuses that qualify as
“trafficking,” I hope to call attention to how exploitative practices are
a regular feature in work sites where undocumented migrants labor.
Low pay, no pay, unsafe working conditions, job insecurity, and a lack
6
See generally Jacqueline Berman, (Un)Popular Strangers and Crises (Un)Bounded:
Discourses of Sex-Trafficking, the European Political Community and the Panicked State of the
Modern State, 9 EUR. J. INT’L REL. 37 (2003) (discussing the problems resulting from
oversimplified and distorted media coverage of trafficking in persons in Europe).
7
Of course, not all trafficked persons voluntarily come to the United States for
work. Some are transported against their will, while others come as the girlfriends or
wives of their eventual traffickers.
8
For a discussion of one particularly publicized slavery case, see JOHN BOWE, NOBODIES: MODERN AMERICAN SLAVE LABOR AND THE DARK SIDE OF THE NEW GLOBAL
ECONOMY 64-72 (2007), and Candace Rondeaux, Fear and Knowing in Immokalee, ST.
PETERSBURG TIMES, Dec. 1, 2002, available at 2002 WLNR 12948137. For a description
of the campaigns against fast food restaurants that use subcontractors that pay tomato
pickers poverty wages, see Steven Greenhouse, Campaign to Raise Tomato Pickers’ Wages
Faces Obstacles, N.Y. TIMES, Dec. 24, 2007, at A10; Kris Hundley, Fast Food Fight: Tomato
Pickers vs. Big Mac, ST. PETERSBURG TIMES, Mar. 5, 2006, available at 2006 WLNR
3726545; Evelyn Nieves, Fla. Tomato Pickers Still Reap “Harvest of Shame,” WASH. POST, Feb.
28, 2005, at A3; and Eric Schlosser, Op-Ed., Penny Foolish, N.Y. TIMES, Nov. 29, 2007, at
A31. See also Dick Durbin et al., Op-Ed., Florida Tomatoes: We Must Treat Farmworkers Fairly,
MIAMI HERALD, Apr. 21, 2008, available at 2008 WLNR 7384830 (advocating legislative
change following a Senate Health, Education, Labor & Pensions Committee hearing on
the poor working conditions and low wages in Florida’s tomato fields).
9
Laura Germino, the Antislavery Campaign Coordinator with the CIW, pointed
out to me that it is important to note that some migrants exploited in farm labor have
documentation. Throughout this piece, I discuss how a lack of documentation generates additional fear and greater vulnerability to exploitation.
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Resettlement of Formerly Trafficked Persons
1585
of clear channels through which employees can bring grievances to
their employers are part of doing business on many work sites where
10
migrants labor. With minimal labor protections for low-wage workers in the informal economy and in jobs created through subcontract11
ing, forced labor exists today in part because a range of other exploitative labor conditions exist and are allowed to proliferate. When
exploitation is the norm, forced labor cannot only flourish, but can
blend into a background of abuse. Trafficked persons are typically restrained not with physical chains, but through mental or physical
coercion. As a result, trafficked persons, whether they pick tomatoes or
wash dishes or sew clothes alongside other migrant workers, may appear
to be working under the same conditions as their coworkers. What distinguishes these “severely exploited” workers from those who have experienced less severe forms of exploitation is their belief that they or
their families will be hurt if they leave their trafficker. These practices
of intimidation work. All trafficked persons—regardless of their particular circumstances of exploitation—live in fear and silence.
This threatening environment influences not only the experiences
of individuals in forced labor and less severely exploited low-wage
workers, but also the prospects for effective resettlement of trafficked
persons, their opportunities for long-term well-being, and possibly
their chances at economic mobility. These socialized and normalized
exploitative conditions among migrant workers spill over into the re12
settlement process. The primary vehicle for posttrafficking resettlement in the United States is the T visa. Created by the TVPA, this category of legal status for formerly trafficked persons grants legal
residence to persons identified as trafficked and makes them eligible
for a range of social services funded by the federal government. To
qualify, exploited workers must prove that they were victims of “force,
10
See generally JENNIFER GORDON, SUBURBAN SWEATSHOPS: THE FIGHT FOR IMMIRIGHTS (2005) (describing immigrant life and activism to improve working
conditions).
11
See generally KEVIN BALES & STEVEN LIZE, TRAFFICKING IN PERSONS IN THE UNITED STATES (2005), available at http://www.ncjrs.gov/pdffiles1/nij/grants/211980.pdf
(explaining the varying challenges for workers in different industries). The dearth of
labor protections and the insufficient number of Department of Labor inspectors allow rampant labor abuses to go unchecked. Id. at 5-40.
12
See PETER KWONG, FORBIDDEN WORKERS 33-36 (1997) (revealing the widespread
acceptance of a range of labor abuses that occur within a highly orchestrated, profitable, violent, and underground system of indentured servitude among Chinese communities in the United States).
GRANT
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13
fraud or coercion.” A T visa recipient may be eligible for permanent
residence after three years if he or she “has complied with reasonable
requests for assistance in the investigation and prosecution of acts of
14
trafficking” during the three years.
A critical question emerges: how much of a difference does a T
visa make in an individual’s posttrafficking resettlement strategy? After all, it certainly does not render one immune from the kind of exploitative labor conditions that many migrants in low-wage labor sec15
tors face. Since T visa recipients typically enter low-wage, insecure,
and possibly exploitative work even after being trafficked, the challenges that they face in the short term threaten to preclude opportunities for economic security and mobility in the long term.
13
ADMIN. FOR CHILDREN & FAMILIES, U.S. DEP’T OF HEALTH & HUMAN SERVS.,
FACT SHEET: HUMAN TRAFFICKING 1 (2009), available at http://www.acf.hhs.gov/
trafficking/about/fact_human.pdf.
14
See ATT’Y GEN. 2008 TRAFFICKING REPORT, supra note 2, at 34-35 (“Victims who
receive T nonimmigrant status are eligible to remain in the United States for up to
four years, and their status may be extended if the law enforcement authority investigating or persecuting activity related to human trafficking certifies that the presence of the
alien in the United States is necessary to assist in the investigation or prosecution of such
activity. After three years, T non-immigrants are eligible to apply for adjustment of status
to lawful permanent residence subject to certain statutory criteria.”).
15
There is excellent scholarship on exploitative labor practices in a number of
industries in which migrants work. For a review of labor practices in factories, see generally EDNA BONACICH & RICHARD P. APPELBAUM, BEHIND THE LABEL: INEQUALITY IN
THE LOS ANGELES APPAREL INDUSTRY (2000); MIRIAM CHING YOON LOUIE, SWEATSHOP
WARRIORS (2001); NO SWEAT: FASHION, FREE TRADE, AND THE RIGHTS OF GARMENT
WORKERS (Andrew Ross ed., 1997); and ELLEN ISRAEL ROSEN, MAKING SWEATSHOPS:
THE GLOBALIZATION OF THE U.S. APPAREL INDUSTRY (2002). For a discussion of exploitative practices in domestic work, see generally GRACE CHANG, DISPOSABLE DOMESTICS: IMMIGRANT WOMEN WORKERS IN THE GLOBAL ECONOMY (2000), and PIERRETTE HONDAGNEU-SOTELO, DOMÉSTICA:
IMMIGRANT WORKERS CLEANING AND
CARING IN THE SHADOWS OF AFFLUENCE (2001). For observations on abuses in the
agricultural industry, see generally DAVID GRIFFITH & ED KISSAM, WORKING POOR:
FARMWORKERS IN THE UNITED STATES (1995), and DANIEL ROTHENBERG, WITH THESE
HANDS: THE HIDDEN WORLD OF MIGRANT FARMWORKERS TODAY (1998). For information on abuses faced by migrant workers in poultry processing, see generally LEON
FINK, THE MAYA OF MORGANTON: WORK AND COMMUNITY IN THE NUEVO NEW SOUTH
(2003); STEVE STRIFFLER, CHICKEN: THE DANGEROUS TRANSFORMATION OF AMERICA’S
FAVORITE FOOD (2005); and DONALD D. STULL & MICHAEL J. BROADWAY, SLAUGHTERHOUSE BLUES: THE MEAT AND POULTRY INDUSTRY IN NORTH AMERICA (2004). Day-labor
conditions are detailed in THE HOMELESS PERSONS REPRESENTATION PROJECT & CASA DE
MARYLAND, BALTIMORE’S DAY LABORER REPORT: THEIR STOLEN SWEAT (2004), and ABEL
VALENZUELA, JR. ET AL., ON THE CORNER: DAY LABOR IN THE UNITED STATES (2006).
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I. METHODOLOGY AND DESCRIPTION OF T VISA RECIPIENTS
My work draws primarily from in-depth interviews with T visa recipients and the social workers and attorneys who oversee their resettlement in the United States. I am indebted to these social workers
and attorneys, who have introduced me to their clients in California,
16
New York, Florida, Maryland, Washington, D.C., and Virginia. To
date, there are no geographical communities of resettled trafficked
17
persons in the United States. Even those who were resettled after the
largest human-trafficking case in the United States, the “American
18
Samoa” case, are not living together in any one place. When possible, I keep in touch with T visa recipients who live in communities
near me—Washington, D.C., Virginia, Maryland, and New York. Over
the past five years, we have met in informal settings, such as for meals,
and I also accompany them to events at community-based organizations with which they are involved. In this way, I have followed how
they have been settling into their new communities and jobs, as well as
how they negotiate the issue of trust as they create and maintain new
social networks of friends, neighbors, and co-workers.
I cannot underscore enough how much my communication with
social workers throughout the country has helped me to understand
the resettlement of such a diverse population in such diverse contexts.
These social workers have generously shared their insights, concerns,
and successes as they, too, learn about the resettlement issues facing
individuals with a new legal designation and accompanying benefits. I
16
See Denise Brennan, Methodological Challenges in Research with Trafficked Persons:
Tales from the Field, 43 (1/2) INT’L MIGRATION (Special Issue) 35, 45 (2005) (discussing
the ethical dilemmas that arise and safeguards that must be in place to assure this particularly vulnerable population’s safety, privacy, and well-being).
17
See id. at 39-40 (explaining that since resettled persons are geographically dispersed, a researcher must choose whether to focus on one resettlement site or conduct
multisite interviews).
18
Id. The “American Samoa” case involved Kil Soo Lee, a Korean national who
was sentenced on January 29, 2004, for conspiracy, extortion, money laundering, and
holding individuals in involuntary servitude in a factory he owned in American Samoa.
See Civil Rights Div., U.S. Dep’t of Justice, Attorney General Announces Sentences in Soto
and Kil Soo Lee Prosecutions, ANTITRAFFICKING NEWS BULL., Feb. 2004, at 1, 1-3, available
at
http://www.justice.gov/crt/crim/trafficking_newsletter/antitraffnews_
feb04.pdf (describing the convictions of Kil Soo Lee and his accomplices, the Soto
brothers). From 1999 through November 2000, Lee “used threats, arrest, deportations, starvation, confinement, and beatings to hold over 200 Vietnamese and Chinese
garment workers in servitude.” Id. at 2. The conviction of Lee and his co-conspirators
is the largest human-trafficking case the Department of Justice has prosecuted. Id. at
1. I have interviewed some of the resettled T visa recipients from this case in Northern
Virginia and in Orange County, California.
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also have been in an ongoing dialogue with migrant-labor organizers
and immigration attorneys as well as individuals who have experienced
a range of workplace violations but whose exploitation does not qualify
19
them as “trafficked.” I have met these exploited (but not “trafficked”)
workers through migrants’ rights organizations, whose community
meetings, celebrations, potluck dinners, and protests I have attended.
Anthropologists’ focus on “the particular” can help begin to doc20
ument just how different each trafficking case is. These ongoing
19
See Frank Laczko, Introduction, 43 (1/2) INT’L MIGRATION (Special Issue) 5, 1011 (2005) (explaining how the definition of “trafficking” has changed over time).
20
See Nancy Foner, Introduction to AMERICAN ARRIVALS 3, 5 (Nancy Foner ed.,
2003) (explaining that the authors tackle “particular issues” and thereby “show the
broad range of anthropological concerns” in immigration issues); Jeremy MacClancy,
Introduction to EXOTIC NO MORE 1, 2 ( J eremy MacClancy ed., 2002) (focusing on how
anthropology can make a contribution by “exposing the weaknesses in grand policy
programs, acting as advocates for the unvoiced, championing the downtrodden, and so
on"); Nina Glick Schiller, The Centrality of Ethnography in the Study of Transnational Migration: Seeing the Wetland Instead of the Swamp (contrasting an ethnographic approach
to studying transnational migration with the broad-based social survey approach), in
AMERICAN ARRIVALS, supra, at 99. This issue calls out for both more macro- and microlevel research. Migration and labor researchers across disciplines “could work collaboratively to produce comparative research across sites within the United States, particularly since [severely exploited persons who have qualified for T visas] show up in large
cities and small towns.” Brennan, supra note 16, at 40. Scholars have joined forces in a
number of substantial migration studies. One large, collaborative migration project in
the United States combined macro- and micro-level data. See Louise Lamphere et al.,
Introduction to NEWCOMERS IN THE WORKPLACE 1, 4-5 (Louise Lamphere et al. eds.,
1994) (describing their research as drawing on individual ethnographic studies, as well
as data on larger economic forces); see also Philip Kasinitz, John H. Mollenkopf & Mary
C. Waters, Worlds of the Second Generation (describing a study of second-generation New
Yorkers conducted by combining telephone surveys of 400 eighteen- to thirty-two-year
olds from the five largest immigrant groups with both loosely structured in-depth interviews and the researchers’ own ethnographic field projects), in BECOMING NEW
YORKERS 1, 1-3 (Philip Kasinitz, John H. Mollenkopf & Mary C. Waters eds., 2004);
Peggy Levitt & Mary C. Waters, Introduction to THE CHANGING FACE OF HOME 1, 19-24
(Peggy Levitt & Mary C. Waters eds., 2002) (focusing their large collaborative study on
the second generation); Douglas S. Massey & Rene Zenteno, A Validation of the Ethnosurvey: The Case of Mexico-U.S. Migration, 34 INT’L MIGRATION REV. 766, 766-67 (2000)
(discussing the ethnosurvey, “a multimethod data-gathering technique that simultaneously applies ethnographic and survey methods within a single study”). Studies that
combine research from across fields help maximize the breadth and depth of research
on trafficking in the United States. See, e.g., CTR. FOR THE ADVANCEMENT OF HUMAN
RIGHTS, FLA. STATE UNIV., FLORIDA RESPONDS TO HUMAN TRAFFICKING (2003), available
at
http://www.abanet.org/irr/enterprise/tip/resources/FSU-Report_on_
Trafficking_Response.pdf (acknowledging that their study represents an “unprecedented statewide collaboration of people, resources and information on human trafficking”); FREE THE SLAVES & HUMAN RIGHTS CTR., UNIV. OF CAL., BERKELEY, HIDDEN
SLAVES:
FORCED LABOR IN THE UNITED STATES 6-7 (2004), available at
http://digitalcommons.ilr.cornell.edu/forcedlabor/8 (describing the collaborative
combination of research methodologies used to study “the nature and scope of forced
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conversations have proven critical to understanding the range of contexts in which forced labor unfolds. T visa recipients are from all over
the world and were in different forms of forced labor in small towns
21
and big cities throughout the United States. They speak different
languages and have varying education and work histories, as well as
22
differences in age, sex, race, and ethnicity. The length of time they
were in forced labor varies from weeks to years, and while most experienced psychological coercion others also underwent physical brutality. As a Victim Assistance Coordinator for Immigration and Customs
Enforcement (ICE) describes, “ICE Agents ask me for profiles of traffickers and their victims. I tell them there is no one m.o. of a typical
trafficker, there is no typical victim, and the paths that lead them here
are varied. I’ve never seen anything like this before.”
II. FINDING TRAFFICKED PERSONS AMIDST EVERYDAY EXPLOITATION
It has been a challenge finding individuals in forced labor in the
United States who would qualify for T visas. Since the TVPA was
23
passed in 2000, around 2300 persons have received T visas. Yet, because the TVPA authorizes the issuance of up to 5000 T visas every
24
year, technically, by the end of 2008 as many as 40,000 persons could
have received T visas. With forced-labor cases slow to surface, and virtually no rigorous scholarship available on forced labor in the United
States, it is not clear if there are 14,500 to 17,500 trafficking cases in
the United States every year, as the State Department Trafficking in
25
Persons Office asserts. What is more certain is that there is widelabor in the United States”); HUMAN RIGHTS CTR., UNIV. OF CAL., BERKELEY, FREEDOM
DENIED:
FORCED
LABOR
IN
CALIFORNIA
6
(2005),
available
at
http://hrc.berkeley.edu/pdfs/freedomdenied.pdf (listing several distinct sources of
data and methods of data collection).
21
See Brennan, supra note 16, at 38 (citing the diversity of trafficking victims and
contexts as a challenge to research).
22
Id.
23
See ATT’Y GEN. 2008 TRAFFICKING REPORT, supra note 2, at 35 (“Since 2001, the
United States government has granted more than 2,300 T visas to victims of human
trafficking and their immediate family members.”).
24
8 U.S.C. § 1184(o)(2) (2006).
25
U.S. DEP’T OF STATE, TRAFFICKING IN PERSONS REPORT 23 (2004) available at
http://www.state.gov/documents/organization/34158.pdf. Estimates of the scope of
trafficking to the United states have fluctuated significantly. The U.S. Department of
State’s Office to Monitor and Combat Trafficking in Persons has revised its own estimate downward from 50,000 in 2000 to 18,000 to 20,000 in 2003, and to 14,500 to
17,500 in 2004. Compare U.S. DEP’T OF STATE, TRAFFICKING IN PERSONS REPORT 3
(2000), available at http://www.state.gov/documents/organization/4107.pdf, with U.S.
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spread exploitation in work sites where migrants typically labor—in
restaurant kitchens, fields, and factories. If we look at sites where migrants work and where wage and hour violations abound, we are likely
to find settings in which forced labor can flourish. The range of “acceptable” exploitation in work sites dominated by migrant workers obscures and effaces the number of individuals who are in situations of
forced labor.
Since fear and intimidation can characterize work sites dominated
by migrant workers even when there is no forced labor, it is not hard
to imagine other factors that may discourage brutally exploited workers from seeking help from community-based organizations or law enforcement. Cases of labor exploitation that do not qualify as trafficking can nonetheless involve daily forms of abuse and intimidation.
DEP’T OF STATE, TRAFFICKING IN PERSONS REPORT 7 (2003), available at http://
www.state.gov/documents/organization/21555.pdf, and U.S. DEP’T OF STATE, TRAFFICKING IN PERSONS REPORT 23 (2004), available at http://www.state.gov/
documents/organization/34158.pdf. The U.S. Government Accountability Office
(GAO) released a report that finds the U.S. government’s estimates of global trafficking “questionable” because of “methodological weaknesses, gaps in data, and numerical discrepancies.” U.S. GOV’T ACCOUNTABILITY OFFICE, HUMAN TRAFFICKING: BETTER
DATA, STRATEGY, AND REPORTING NEEDED TO ENHANCE U.S. ANTITRAFFICKING EFFORTS
ABROAD 2 (2006), available at http://www.gao.gov/new.items/d06825.pdf. And, domestically, a 2007 GAO report notes that “pursuing trafficking in persons crimes continues to present special challenges to federal investigators and prosecutors” since “victims are often hidden from view, employed in legal or illegal enterprises, do not view
themselves as victims, or are considered to be criminals or accessories to crimes.” U.S.
GOV’T ACCOUNTABILITY OFFICE, HUMAN TRAFFICKING: A STRATEGIC FRAMEWORK
COULD HELP ENHANCE THE INTERAGENCY COLLABORATION NEEDED TO EFFECTIVELY
COMBAT TRAFFICKING CRIMES 2 (2007), available at http://www.gao.gov/new.items/
d07915.pdf. Consequently, “trafficking in persons cases are difficult to pursue because
they are multifaceted, complex, and resource intensive.” Id. As a report from the Immigration Policy Center notes,
The large discrepancy between the number of trafficking victims estimated to
be present in the United States and the total number of victims receiving protection under the TVPA is the result of several factors: (1) the imperfect nature of trafficking estimates; (2) misidentification of victims by law enforcement; (3) the conditional nature of victim protections; and (4) overly
restrictive eligibility requirements for the T-visa.
Alexandra Webber & David Shirk, Hidden Victims: Evaluating Protections for Undocumented Victims of Human Trafficking, IMMIGR. POL’Y IN FOCUS, Dec. 2005, at 1, 1. The
authors thus conclude that
providing more resources to combat an ill-defined problem is not the answer.
First and foremost, government assessments of human trafficking into the
United States need to be seriously re-evaluated, both in terms of the numerical estimates and the type of human trafficking cases (either labor or sex) occurring on U.S. soil.
Id. at 10.
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Forced labor is just one part of a larger story of rampant migrant labor
exploitation—particularly in the informal economy and in jobs
created through subcontracting. Legal scholar Jennifer Gordon
writes about a kind of “super exploitation” that happens to most undocumented workers who, at some point, are cheated out of their
26
wages in what she calls “everyday sweatshops.” They do not report
these abuses for fear of being fired or deported. An organizer for
PCUN (Pineros y Campesinos Unidos del Noreste—Northwest Treeplanters and Farmworkers United) in Woodburn, Oregon, for example,
explains that “exploitation happens in small companies and large
companies. There are multiple avenues to rip off workers, especially
because of a lack of English. This is so common, these things happen
all the time, to all the workers.” And, an organizer for the United
Farm Workers (UFW) in Oxnard, CA, also describes widespread practices of intimidation in the nearby strawberry fields, “We hear of bad
pay or no pay all the time. But if workers complain, they get fired.”
Another UFW organizer explains how farm contractors warn the
workers that they will be fired if they go to the local UFW office. “So
the few who do come here to the office are literally scared to be here.
It’s easier to meet folks out and about in town and to tell them what I
do, than to get them to come here.” Many fear not just for themselves, but for their co-workers. Contractors threaten that they will
fire an entire crew (around forty people in the case of strawberry picking) if a worker persists with a complaint.
It is in this environment of abuse and silence that it has been difficult finding individuals in forced labor. There are a number of other
factors, in addition to concern for one’s co-workers (many of whom
may be family members or neighbors from their home communities)
that discourage exploited workers from reporting their abuse. Brutally exploited individuals may not come forward if they work and live
among coethnics. They may not only have a well-founded fear of reprisals from their abuser and his or her associates, but may also fear
law enforcement, which may be corrupt and violent in their home
countries. Of course, the possibility of not qualifying for a T Visa and
thus risking deportation prevents exploited migrant workers from
seeking help. And there are workers who do not want help but rather
27
dedicate themselves to paying off their debts.
26
GORDON, supra note 10, at 15.
See KWONG, supra note 12, at 38 (quoting a worker stating, “I hate to owe people
money. These debts are hurting me like nails stuck into my body”).
27
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Rights-based outreach in sites where migrants work and live is one
approach to creating safe channels to report abuses. Everyday “rights
work” that informs and empowers migrant workers is critical to finding—and possibly preventing—forced labor. The Coalition of Immokalee Workers in Immokalee, Florida, provides a model of how to prevent forced labor and to protect against less-severe forms of migrant
worker exploitation by engaging in labor organizing and investigative
28
work. Through their drop-in center, weekly meetings, radio show,
block parties, and ongoing outreach in places where farmworkers
work and live, they learn of labor conditions on nearby farms while informing workers of their rights. CIW members who drive vans that
ferry laborers between farms also have served as sources of information. These kinds of ground-up streams of ongoing documentation of
exploitation are essential not only to bringing more cases of forced
labor to light, but also to exposing exploitative labor practices against
which migrant workers can be fearful of speaking.
Recent anti-immigrant policies in communities throughout the
United States have intensified this atmosphere of chronic intimidation. ICE raids in workplaces where undocumented migrants are assumed to work, in combination with 287(g) agreements, have dee29
pened distrust between migrant communities and law enforcement.
28
The Coalition of Immokalee’s investigative work has resulted in the identification
of over a thousand tomato and orange pickers held in debt bondage. Their work has
also led to prosecutions by the U.S. Department of Justice of traffickers who both threatened workers if they tried to leave and pistol-whipped passenger-van-service drivers who
gave rides to farm workers leaving the area. See Rondeaux, supra note 8 (noting that the
CIW “play[s] a key role in pressing criminal cases”). For examples of such prosecutions,
see United States v. Flores, No. 98-4178, 1999 WL 982041, at *1-2 (4th Cir. Oct. 29, 1999);
United States v. Evans, No. 05-00159 (M.D. Fla. Feb. 5, 2007); United States v. Cuello, No.
99-00050 (M.D. Fla. Sept. 20, 1999).
29
Virginia’s Prince William County is one example of the deleterious effects of
local law enforcement targeting migrant communities. See N.C. Aizenman, In N. Va., a
Latino Community Unravels, WASH. POST, Mar. 27, 2008, at A1 (observing that law enforcement targeting of migrant communities, combined with the mortgage crisis and
displacing construction, transformed once vibrant Latino communities into ghost
towns); Karin Brulliard, Crackdown on Illegal Immigration Quiets Soccer Fields in Pr. William, WASH. POST, Mar. 12, 2008, at A1 (reporting that fears of being detained led migrant workers to avoid attending local soccer games); Theresa Vargas, Team Will Track
Pr. William’s Illegal Immigration Crackdown, WASH. POST, Mar. 17, 2008, at B1 (describing
the work of sociologists to document the effects of the crackdown). Federal actions
have also caused problems. See Adam Nossiter, Hundreds of Factory Workers Are Held in
Immigration Raid, N.Y. TIMES, Aug. 26, 2008, at A12 (documenting criticisms of an ICE
raid on a factory in Mississippi); Julia Preston, After Iowa Raid, Immigrants Fuel Labor Inquiries, N.Y. TIMES, July 27, 2008, at A1 (noting that pervasive labor violations, such as
employing children as young as thirteen years old, were found after a raid at an Iowa
meatpacking plant).
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At the same time that much-needed partnerships between law enforcement and migrant communities have been damaged, “antitrafficking” policies under the Bush Administration focused on one
30
labor sector—the sex industry. “Sex trafficking” was conflated with
trafficking into all forms of labor, and voluntary sexual exchanges for
31
money between adults were described as sex trafficking. Such a narrow conceptualization of “trafficking as sex trafficking” explains, in
part, why so few T visas have been issued to date. These contemporary
sex panics have diverted attention away from serious discussions
about—and investigations into—the relationship between migrants’
undocumented status and exploitative labor conditions in the underground economy. Threatened, intimidated, and frequently isolated,
individuals in forced labor are difficult to reach even with ongoing investigative efforts. The creation of forty-two task forces in sites
throughout the United States brings together law enforcement and
community partners with the intent of finding more persons in forced
32
labor. Yet there is little indication that these task forces are investigating exploitative labor practices in work sites beyond massage parlors or brothels. With the sex industry receiving the most attention,
more meaningful rights-based alliances with community partners are
33
sorely needed to address the needs of migrant workers.
However, ongoing partnerships between local law enforcement
and migrant organizations and leaders have been critically damaged
by local law enforcement’s participation in immigration-related arrests
34
through 287(g) agreements. Administered through the Department
30
Denise Brennan, Competing Claims of Victimhood? Foreign and Domestic Victims of
Trafficking in the United States, 5 SEXUALITY RES. & SOC. POL’Y 45, 49 (2008).
31
For an examination of adult women’s use of the sex industry with foreign tourists as an “advancement strategy” through the possibility of out-migration through
marriage, see DENISE BRENNAN, WHAT’S LOVE GOT TO DO WITH IT? TRANSNATIONAL
DESIRES AND SEX TOURISM IN THE DOMINICAN REPUBLIC (2004).
32
These task forces partner local U.S. Attorney Offices with state, local, and territorial law enforcement agencies and with community-based organizations “to create a
victim centered human trafficking task force 2007 ATT’Y GEN. ANN. REP. TO CONGRESS
& ASSESSMENT OF U.S. GOV’T ACTIVITIES TO COMBAT TRAFFICKING IN PERSONS FISCAL
YEAR 2006, at 6, available at http://www.justice.gov/archive/ag/annualreports/tr2006/
agreporthumantrafficing2006.pdf [hereinafter ATT’Y GEN. 2006 TRAFFICKING REPORT].
33
See Brennan, supra note 30, at 49 (arguing that subsuming all trafficking into sex
trafficking and equating all sex work with sex trafficking diverts attention away from
investigation into migrants’ labor conditions and undocumented status).
34
Denise Brennan, Woodrow Wilson Int’l Ctr. for Scholars, Ending Forced Labor
by Securing Immigrant Workers’ Rights (Dec. 2009), http://www.wilsoncenter.org/
index.cfm?fuseaction=sf.item&news_id=565874. These 287(g) agreements have been
widely criticized. An editorial in the New York Times denounced President Obama’s
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of Justice, these agreements empower local police officers to check
the immigration status of individuals stopped for other violations.
The deputization of local police to enforce immigration laws and ICE
raids on workplaces where undocumented immigrants may labor have
clearly chilled the relationship between law enforcement and migrant
35
communities. It is not clear, however, what kind of success law enforcement would have if they attempted to investigate labor issues in
work sites where fear reigns—both fear of one’s employers/traffickers
and also of law enforcement and the possibility of deportation. There
are more disincentives to come forward than ever before. With trust
eroded between law enforcement and migrant communities, service
providers have criticized the requirement that those seeking a T visa
assist law enforcement as undermining a “victim centered approach.”
For example, one report by the Women’s Commission for Refugee
Women and Children, documents service providers’ concerns that
“trafficked persons are refusing to report to law enforcement when
they learn of what the process entails,” which “forces trafficked persons to pursue an alternative form of immigration relief than the T Vi36
sa and struggle without the federal benefits.”
Yet, even with a broader understanding of “trafficking”—beyond
the limits of the sex industry—under the new administration, finding
individuals in forced labor will require new collaborations with migrant leaders at their center.
Department of Homeland Security’s decision to expand “old, bad Bush administration
ideas about immigration enforcement.” Editorial, More Immigration Non-Solutions, N.Y.
TIMES, July 13, 2009, at A18. A number of reports call for an end to 287(g) programs.
See ANITA KHASHU, POLICE FOUND., THE ROLE OF LOCAL POLICE: STRIKING A BALANCE
BETWEEN IMMIGRATION ENFORCEMENT AND CIVIL LIBERTIES 31 (2009) (arguing that
the costs of the 287(g) program outweigh the benefits); see also AARTI SHAHANI & JUDITH GREENE, JUSTICE STRATEGIES, LOCAL DEMOCRACY ON ICE: WHY STATE AND LOCAL
GOVERNMENTS HAVE NO BUSINESS IN FEDERAL IMMIGRATION LAW ENFORCEMENT 1
(2009) (contending that the 287(g) program has failed); NAT’L COMM’N ON ICE MISCONDUCT AND VIOLATIONS OF 4TH AMENDMENT RIGHTS, RAIDS ON WORKERS: DESTROYING OUR RIGHTS 1 (2009) (describing ICE actions as a “dramatic departure from
our nation’s ideals”). The membership of the National Commission on ICE Misconduct includes Tom Vilsack, the current U.S. Secretary of Agriculture. NAT’L COMM’N
ON ICE MISCONDUCT AND VIOLATIONS OF 4TH AMENDMENT RIGHTS, supra, at 73.
35
See supra note 29 and accompanying text.
36
WOMEN’S COMM’N FOR REFUGEE WOMEN & CHILDREN, THE U.S. RESPONSE TO
HUMAN TRAFFICKING: AN UNBALANCED APPROACH 4 (2007).
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III. LIFE AFTER TRAFFICKING
A. Trust and Social Networks of Coethnics
Given the limited resources available for the resettlement of trafficked persons in the United States, I ask how their resettlement needs
may look similar to or different from those of their fellow coethnic
37
migrants, with whom they often work and live. After all, they confront the same daily resettlement tasks as other migrants who are
building new lives in a new country. They also have the burden of
coping with the loss of control over their lives, and possibly, with having been beaten and raped. But formerly trafficked persons are not
the only group of migrants who wrestle with past traumas. Other migrants, refugees, and asylees may also have experienced traumatic
events (for example, violent conflicts or state-sponsored persecution).
Moreover, since every case of trafficking has unique characteristics, it
is not possible to assert that trafficking causes a particular set of traumas. I assume, therefore, that formerly trafficked persons have had
different experiences in forced labor and thus face different challenges regaining control and rebuilding their lives in the United States.
I also approach this project with the limitations of the “trauma concept”
in mind. I do not assume that suffering renders someone “trauma38
tized,” but rather possibly profoundly sad, scared, or lonely.
Research on other populations that have experienced violence—
such as refugees displaced after war or genocide—provides some insights for understanding the resettlement challenges for formerly trafficked persons. But it also has limitations, since it does not specifically
37
According to a “needs assessment” survey of social service providers, formerly trafficked persons “have fewer resources available to them” than do battered immigrant
women, and they “lack basic resources, such as [places] to eat, sleep, or live. They are
more vulnerable to exploitation.” HEATHER J. CLAWSON, ET AL., CALIBER ASSOCS., INC.,
NEEDS ASSESSMENT FOR SERVICE PROVIDERS AND TRAFFICKING VICTIMS 19 (2003).
38
See generally ELZBIETA M. GOZDZIAK, REFUGEE WOMEN’S PSYCHOLOGICAL RESPONSE TO FORCED MIGRATION: LIMITATIONS OF THE TRAUMA CONCEPT 10 (2005) (describing “[t]he trauma model” as based on values that “are very different from the values of many refugee women”); ARTHUR KLEINMAN, WRITING AT THE MARGIN:
DISCOURSE BETWEEN ANTHROPOLOGY AND MEDICINE 174 (1995) (“The suffering that
results from political violence includes a range of traumas: pain, anguish, fear, loss,
grief and the destruction of a coherent and meaningful reality.”); ALAN YOUNG, THE
HARMONY OF ILLUSIONS: INVENTING POST-TRAUMATIC STRESS DISORDER 229-63
(1995) (describing the diverse symptoms and treatment of individuals diagnosed with
post-traumatic stress disorder).
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39
address the experience of being held against one’s will. Furthermore, research on rebuilding communities after violence usually focuses on violence that occurred in a particular locale, involving mul40
tiple members of the community.
By contrast, most formerly
trafficked persons did not endure their human rights abuses and suffering because of their group or ethnic identity, nor are they undergoing their resettlement collectively, as members of a group that ex41
perienced violence. In fact, most formerly trafficked persons have
never met another individual who also had been in forced labor. To
add to their isolation, most T visa recipients—both those who were in
forced labor alone, as well as those who worked alongside others (for
example, in sweatshops or in agricultural fields)—describe telling neither their families back home nor their new friends in the United
42
States about their experience in forced labor. In this sense, they remain alone in their silence about their abuse.
Some formerly trafficked persons meet one another for the first
time through workshops offered by social service agencies and community-based organizations. These meetings, ostensibly designed to
teach specific skills (such as money management, resumé writing, or
39
See generally LIISA H. MALKKI, PURITY AND EXILE 2 (1995) (detailing the experiences of Hutu refugees that fled from Burundi to Tanzania); Beatriz Manz, Terror,
Grief and Recovery: Genocidal Trauma in a Mayan Village in Guatemala (describing the
psychological effects of genocide in a Guatemalan village), in ANNIHILATING DIFFERENCE: THE ANTHROPOLOGY OF GENOCIDE 292, 301-04 (Alexander Laban Hinton ed.,
2002); Kimberly Theidon, Intimate Enemies: Toward a Social Psychology of Reconciliation
(surveying the “social afflictions” that lingered in Peruvian villages after the armed
conflict of the late twentieth century), in 2 THE PSYCHOLOGY OF RESOLVING GLOBAL
CONFLICTS 211, 217-23 (Mari Fitzduff & Chris E. Stout eds., 2006).
40
See, e.g., LINDA GREEN, FEAR AS A WAY OF LIFE 4 (1999) (focusing on “the lives of
some Mayan widows who live in Xe’caj,” a Guatemalan village). While the violence in
trafficking is often hidden, cases of state-sponsored violence and terror have been spectacularly public, creating an atmosphere of fear. Green describes “[h]orror, fear, and
spectacle, along with murder and brutality” as “weapons of control” used against the
Mayan population living in the western highlands of Guatemala. Id. at 173 n.2. Disappearances, “scorched earth campaigns” that burn and raze villages and displace entire
communities, and massacres are all public acts of horror meant to scar the survivors.
Id. However, while communities may have been caught up in a kind of public violence
together, this does not mean that they talk about it. Green found such silence in Guatemala, where the civil war was referred to in “public discourse simply as la violencia or la
situacion” and “public discussions about widows or orphans were nonexistent.” Id. at 3.
41
As an example of efforts to publicly heal and break the silence about violence,
members of a community in Guatemala wrote and performed a play about the violence
they experienced as a community. See BEATRIZ MANZ, PARADISE IN ASHES: A GUATEMALAN JOURNEY OF COURAGE, TERROR, AND HOPE 233 (2005).
42
Cf. Brennan, supra note 16, at 42 (“There are many pressures on trafficked persons to maintain silences about their status.”).
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computer proficiency), have an ancillary result: formerly trafficked
persons who have never met other formerly trafficked persons can
identify commonalities in their experiences. One Spanish-language
series of “empowerment” workshops for formerly trafficked persons at
a social service provider in New York City, for example, provided a forum for formerly trafficked persons to lead discussions. One of these
facilitators, Eva, having earned her GED, was pursuing a degree in a
nursing assistance program at the time. She became an inspiration to
other women in the group. While waiting on the sidewalk outside of
the social service organization with a woman who was part of this group,
we ran into Eva, who was on her way to see her case manager. Seeing
Eva dressed in her blue scrubs and carrying a book bag provoked this
fellow group member to remark on how amazing Eva was and how she,
too, was looking into different degree programs. Yet, most formerly
trafficked persons never get to meet, share stories, or offer advice, support, or inspiration to other formerly trafficked persons.
Meeting others with similar experiences can be particularly helpful since trusting others has been a central theme in formerly trafficked persons’ narratives. I use the term “trust” in ways similar to
Daniel and Knudsen, who write about how refugees both “mistrust”
43
and are “mistrusted.” I ask how someone who was profoundly exploited begins to trust others again, and how community support plays
a role in this process. Formerly trafficked persons are asked almost
immediately after they escape or are rescued to trust a variety of individuals, such as local police, immigration officials, state and federal
prosecutors, and their own lawyers. Julie, an Indonesian woman who
was in forced domestic labor in California, explained, “You do not
know any one. It is hard to trust other people. After I got out, everyone was asking me questions. I thought what if they do the same
thing to me again?”
Formerly trafficked persons may not only distrust “officials” but
coethnics as well. When formerly trafficked persons have been exploited by coethnics, coethnic communities become problematic as
sources of comfort, assistance, or belonging. In fact, as much as social
networks within “ethnic enclaves” can facilitate finding jobs and hous44
ing, formerly trafficked persons who have been exploited by coethnics may forgo capitalizing on this assistance.
43
See generally MISTRUSTING REFUGEES (E. Valentine Daniel & John Chr. Knudsen
eds., 1995).
44
See generally RICHARD ALBA & VICTOR NEE, REMAKING THE AMERICAN MAINSTREAM: ASSIMILATION AND CONTEMPORARY INTEGRATION 47-49 (2003) (noting that
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Despite their efforts to put their situations of abuse behind them,
some formerly trafficked persons tell stories of their past catching up
with them. Rosa, a Mexican woman who was forced to have sex in
Mexican-run brothels in New York City that cater to Mexican clients,
ran into a former customer at her job in a restaurant. This former
customer recognized her and told one of Rosa’s friends that he had
met her at a brothel. Since then she vowed to never work in a restaurant run or frequented by coethnics. Another woman, Flo, who is
from Zimbabwe and was in forced domestic labor, ran into a friend of
her trafficker in a store. The friend called Flo’s trafficker (a diplomat
who was not prosecuted), who spent the next week telephoning all of
Flo’s friends trying to locate her.
There are a variety of pressures on migrants who are working under abusive conditions to maintain silence about their status, even
45
within coethnic community-based organizations. While the community organizations that tend to the multiple needs of trafficked persons see themselves as trustworthy, there is no self-evident reason migrants who have been in forced labor would automatically regard
them as such. An advocate with a community organization that assisted in the resettlement of Thai workers following the August 1995
raid of a sweatshop in El Monte, California, explains how the concept
of having rights was new to these seventy-one migrants from rural
46
Thailand. After their liberation from being locked (some for seven
while social networks may help with “finding a first job, and other practical aspects of
workaday lives,” they can also have the effect of “giv[ing] rise to dependence on the
ethnic community”); TIMOTHY P. FONG, THE FIRST SUBURBAN CHINATOWN: THE REMAKING OF MONTEREY PARK, CALIFORNIA 31 (1994) (discussing how the network of
Chinese immigrants in Southern California contributed to their population increase in
concentrated areas); TERRY A. REPAK, WAITING ON WASHINGTON: CENTRAL AMERICAN
WORKERS IN THE NATION’S CAPITAL 78-83 (1995) (providing evidence of the strong
ethnic networks operating among Central American immigrants in Washington, D.C.);
ROGER WALDINGER & MICHAEL I. LICHTER, HOW THE OTHER HALF WORKS: IMMIGRATION AND THE SOCIAL ORGANIZATION OF LABOR 83-99 (2003) (discussing generally social-networking theory and its impact on job markets).
45
Because a kind of learned silence often emerges as a survival strategy during
civil war or genocide, refugees also are known not to speak about their past experiences. Aiwha Ong writes about Cambodian refugees who, while living under the terror of the Pol Pot regime, “[i]n the midst of life-and-death choices and the extremity
of daily survival . . . depended on subterfuge, disguise, lying, and silence.” AIHWA ONG,
BUDDHA IS HIDING: REFUGEES, CITIZENSHIP, THE NEW AMERICA 47 (2003). Once resettled in Oakland and San Francisco, “[the refugees] tried to disappear into the local old
people among whom they were settled.” Id.
46
Julie A. Su & Chanchanit Martorell, Exploitation and Abuse in the Garment Industry: The Case of the Thai Slave-Labor Compound in El Monte (detailing the history of the El
Monte workers and their plight), in ASIAN AND LATINO IMMIGRANTS IN A RESTRUCTUR-
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47
years) in the factory and being housed in El Monte, they were placed
in INS detention. Since this was 1995, five years before the TVPA was
48
passed, these exploited garment workers were treated as criminals.
In accordance with INS procedure at the time, they were brought to a
detention center, put in prison uniforms, and shackled whenever
49
transported. The community advocate describes the challenge of
50
getting this twice victimized group to trust her and other advocates
who were lobbying for the Thai workers release:
To be stuck the way they were, they came to accept it as fate. Buddhists
can be very fatalistic. So they were accepting what was handed to them.
We talked about being independent, thinking for yourself, and having
rights. At first they did not understand a single thing we were saying.
First and foremost we had to work on the trust issue. We tried to explain
that we were trying to get them out, bring their traffickers to justice, and
to get back their wages.
In the midst of this confusing time for the jailed Thai workers, a
local official of the Thai government reminded them of their class status. The community advocate explains, “They were told: ‘This is your
ECONOMY: THE METAMORPHOSIS OF SOUTHERN CALIFORNIA 21, 25-26 (Marta Lopez-Garza & David R. Diaz eds., 2001). Su and Martorell argue that “Thai women[] are
especially vulnerable to exploitation” since “[t]raditional Thai values confer on Thai
women a social position that is inferior to that of males and thus predisposes many
women to enter exploitative forms of labor.” Id. at 24. In the El Monte case, four
workers were men and sixty-seven were women. Id. at 25.
47
“The slave-labor compound in which the Thai workers were confined was a twostory apartment complex consisting of seven units, surrounded by a ring of razor wire
and iron guardrails with sharp ends pointing inward.” Id. at 22. At the compound,
“[a]rmed guards kept constant surveillance of their every movement and censored and
monitored their actions, phone calls, and letters home.” Id. at 21.
48
Since the TVPA, there have been cases in which those swept up in raids and rescues (particularly of massage parlors and brothels) were placed in immigration detention until their trafficking status could be determined. Those who are designated as
trafficking “victims” begin receiving legal and social services (including housing assistance), while those who are designated as “not trafficked”—and who are undocumented—are deported. See, e.g., Allan Lengel, 31 Arrested in Reputed Korean Sex-Slave
Trafficking Along East Coast, WASH. POST, Aug. 17, 2006, at B8 (describing the breaking
up of a trafficking ring that resulted in sixty-seven Korean women being “rounded up
and interviewed to determine whether they were involuntarily part of the ring”); Paul
Meyer, Asian Spa Arrests Fuel Debate on Human Trafficking, DALLAS MORNING NEWS, May
7, 2006, available at 2006 WLNR 8309083 (describing a nationwide sting that included
a Dallas spa where many of the women were working, who had been illegally smuggled
into the country, were classified as nonvictims and sent to immigration court).
49
Su & Martorell, supra note 46, at 27-28.
50
For example, Sweatshop Watch, a statewide network “dedicated to eliminating
the exploitation and illegal and inhumane conditions that characterize garment industry sweatshops,” “reacted immediately to secure the release of the Thai workers from
continued detention.” Id. at 28.
ING
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lot in your life. You are an embarrassment to the Thai government.
There is nothing we can do, let the U.S. government deport you. How
can you seek redress and wages—you can’t afford a lawyer. It will be
like fighting a brick wall. So, when an official comes who is appointed
by the King, you will do exactly what he tells you.’”
B. Posttrafficking Experiences in the Labor Market
It is in this context of mistrust, fear, and lack of familiarity with
“rights” that I now turn to formerly trafficked persons’ experiences in
the labor market after trafficking. At this still relatively early point in
posttrafficking resettlement, there is a disconnect between the stated
goals of the government’s resettlement programs funded through the
TVPA and what social workers who run these programs can do on the
ground. Social workers and case managers cannot protect their
clients from financial setbacks or exploitation in their new workplaces.
These social workers and case managers are frustrated by the constant
onslaught of challenges their clients face. For example, one woman
from Malaysia who is the sole financial provider for herself and two
children who were resettled with her in the metropolitan D.C. area
worries constantly about how to stretch her paycheck. There is no
room for any extras. Her salary as a child-care provider barely covers
the family’s monthly expenses: rent, food, and her hour-long commute by bus and metro to her job. On the weekends, when buses do
not run between her neighborhood and the metro station, she does
not mind the one-hour walk to the metro. But she refused to follow a
case manager’s suggestion to have her children wear their jeans more
than once to save money at the Laundromat. Distraught, she asserted,
“The laundromat is expensive. But I’m not sending my kids to school
in dirty clothes.” These private—and often banal—daily struggles after trafficking are far from breathless media headlines about trafficked persons’ escape or rescue.
Consequently, social workers—who are on the front lines of working with formerly trafficked persons throughout the country—have
been expressing their concerns that despite the package of benefits
that T visa recipients receive, these resettlement programs nonetheless are producing new members of the working poor. As one social
worker in California noted, the T visa can only do so much; without
more benefits, the current program may be creating “a new subset of
poor immigrant workers.” Of course, legal documentation to work
and live in the United States removes a source of significant stress.
Yet, even with a T visa, these individuals still face many obstacles to
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economic security, including minimal English skills, lack of social
networks in well-paying jobs, and the pressure to send remittances
home to family members. In addition, some are responsible for repaying their smuggling debts to banks or loan sharks back in their
home communities. Carmen, whose story with which I opened, explained that “the T visa does not really give you much.” While waiting
to adjust to permanent status, she cannot travel out of the country and
has not seen her family in Equador since before she was trafficked.
She regrets not suing her former traffickers for back wages: “Today I
would sue, but I was so young at the time, twenty-one. I was scared
and wanted to put it behind me.”
Chronic financial insecurity characterizes formerly trafficked persons’ lives in the United States not only in the short term, but also
years into their resettlement. Few have extensive social networks outside of the industry in which they may be working that may help them
find new jobs with better wages, greater security, or opportunities for
mobility. And for those who want to acquire new skills or degrees,
both paying for school and balancing work and classes present more
challenges. In short, they face the same struggles that have been well
51
explored in scholarship on the working poor. Often the first in their
immediate family and kin networks to migrate to the United States, as
“pioneers” it is difficult to secure a toehold—let alone move ahead—
in the U.S. economy. I hear over and over from social service providers throughout the United States that their “trafficked” clients want to
work right away. Work is the reason they came to the United States in
the first place. Securing safe, well-paying jobs thus has become the
shared project of many formerly trafficked persons and their case
managers during the beginning stages of their resettlement process.
It can be the linchpin to feeling in control of one’s life. One social
worker in California elaborates, “Work helps them move ahead, they
usually are fast planners. It keeps them from getting emotionally depressed. Even when there is a setback they say, ‘Ok, this was a setback,
so now what do we do, what’s next?’” One T visa recipient, Maria,
who is from the Philippines and who was in forced domestic labor,
explains, “I make the decisions in my life now. No one else tells me
what to do.” Carmen too, notes that “no one will ever tell me what to
51
For research on the difficulty of getting a jump out of poverty in the United
States, see generally DANIEL DOHAN, THE PRICE OF POVERTY: MONEY, WORK, AND CULTURE IN THE MEXICAN AMERICAN BARRIO (2003); KATHERINE S. NEWMAN, NO SHAME IN
MY GAME: THE WORKING POOR IN THE INNER CITY (1999); and WILLIAM JULIUS WILSON, WHEN WORK DISAPPEARS (1997).
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do again.” Work is also one way to give structure to the day; during
those periods without it (most often immediately after release from
forced labor and before receiving working papers), formerly trafficked persons have a lot of time on their hands and can replay their
past experiences of their abuse in their minds. To keep busy, Maria,
for example, wants to work even more hours: “Ever since my situation
I wake up every morning at 4:30 or 5:00. I think about my past situation. I wish I could go to work early in the morning.”
Not only does work help Maria keep her mind off her past, but it
also allows her to send remittances home to her teenage son and her
sister- and brother-in-law with whom he lives in the Philippines. She
proudly showed me pictures of the house she had built for them,
pointing out a hand-carved table along with other furniture and electronic equipment for which she had sent money. She also financed a
family business by purchasing a truck to transport the banana crops
they grow, and she pays the tuition for several nieces and nephews to
attend university. Maria’s varied and impressive investments in her
extended family’s future have been possible in part because of a financial settlement she reached with her former employers. However,
for T visa recipients who do not win large civil awards, most struggle to
live off their earnings in low-wage jobs, let alone send remittances to
their home countries.
T visa recipients’ families in their home countries often have high
expectations that their loved ones who are lucky enough to work in
the United States will send regular remittances. Families back home
may have little understanding of how hard it is to make significant
earnings in the low-paying jobs available. With these kinds of obligations hanging over them, T visa recipients frequently dedicate themselves to making as much money as they can—even if it means working under conditions that are only marginally better than when they
were in situations of forced labor. Formerly trafficked persons are
vulnerable not just to unsafe and dangerous working conditions but
also to reexploitation. A social worker in California explains,
Even when our clients have T visas, their desperation to work is so high
and their skill sets may not always be strong. So, if a client looks for a
work in a restaurant she very well may be offered a job below minimum
wage. There are ten other people waiting to take that job. It’s hard to
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tell a client to not take this job and to hold out for a higher wage which
may be hard for her to find.52
She describes clients who have been exploited their whole lives:
They have come to normalize exploitation. Without the English language, education, and skills they can only find low-wage exploitative
work. And this is their number one goal—to work. Many will choose to
go back to a situation of exploitation. What can we do? We tell them
this is not legal and that these are sweatshops with exploitative conditions. They go to places like restaurants and get paid under the table.
It’s a dilemma. But, they see their larger community of coethnics is in
the same situation. If they did hold out for minimum wage and full benefits, they may be waiting a long time.
This same organization has battled with state agencies that have referred their clients to exploitative jobs in elder care with no minimum
wage and no system for documenting how many hours employees work.
In another case, it counseled a client who had been working (in a posttrafficking job) in a garment factory with no minimum wage. Although
she quit this job, she decided not to file a report with the Department
of Labor for back wages since the factory was owned by a member of
her coethnic community and she did not want to be ostracized.
C. Women in Forced Sexual Labor
With many “antitrafficking” organizations throughout the United
States engaging in activities to “rescue” all women—whether coerced
53
or not—from the sex industry, it is important to note that even those
who were in forced sexual labor may elect to continue to earn money
through paid sexual encounters. The pay is better in the sex industry—assuming that they keep all their earnings—than that in other
jobs to which they have access. For example, Sofia, who is originally
from Mexico, had worked in the sex industry in Mexico and the United States before she ended up in a situation of forced sexual labor.
52
In a report commissioned by the National Institute of Justice, the authors write
about Emilio who, while waiting for a decision on his T visa application, had turned to
“illegal work in unsafe conditions” since his “most important concern” was not “safety,
health, housing, or food stamps,” but “to earn an income he can live on, and ideally, to
send money home to his child.” BALES & LIZE, supra note 11, at 114.
53
See Elizabeth Bernstein, The Sexual Politics of “New Abolitionism,” 18 DIFFERENCES
128, 130 (2007) (arguing that state and federal antitrafficking laws “equate prostitution
with human trafficking”).
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She explains why she decided to stay working in the sex industry after
trafficking: “It took a lot of strength to not return to it. You get used
to the money! And, life is very expensive here.” Women who were in
forced sexual labor also may have access to a variety of forms of assistance from former clients to help them gain a secure economic toehold in the United States. Sofia, for example, lives with a boyfriend in
New York City who used to be a client and who pays the household
expenses. It was not until she moved in with him that she could afford
to leave earnings in the sex trade behind her and enroll in English
classes full time. Similarly, Tatiana, who had been trafficked into exotic dancing from Russia, pays her rent in Washington, D.C., through
the financial assistance of a former client who lives in another city.
As much as individuals who were trafficked into sexual labor may
have access to financial resources that individuals trafficked into other
industries do not, they also may struggle with issues around disclosing
their past experiences in different ways than other formerly trafficked
persons. Tatiana was overwhelmed, for example, by the many questions thrown at her by law enforcement and attorneys: “I had to start
to trust people, the people trying to help me out.” After being under
constant surveillance by the clubs’ owners, Tatiana had learned to be
on guard. Just how much information individuals should reveal in
order to make a legal case can be particularly difficult to gauge, especially since doing so reverses their instincts toward self-preservation:
“It was hard to trust at first because I was thinking maybe I said too
much. You have to keep information secret because you never know
where it goes.” Tatiana’s impulse to keep information to herself is
shared by many formerly trafficked persons across industries, particularly if law enforcement is untrustworthy in their home countries.
D. Friends, Romantic Partners, and Community-Based Organizations
Finding romantic partners with whom to share household and
other expenses has helped many T visa recipients weather firings and
other economic setbacks. Without sharing household expenses, formerly trafficked persons are unlikely to save enough money to go to
school, which is an essential step many have taken toward economic
mobility. Carmen was fired from a housekeeping job at a hotel after
she was physically assaulted by a co-worker whose work Carmen—as a
supervisor—had pointed out was sloppy. Unemployed for six months,
Carmen was able to get by because she was living with her boyfriend
who paid household expenses while Carmen looked for a new job. At
the time, Carmen’s case-management file was closed (she had received
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a T visa a couple of years earlier); nonetheless, her former case manager put her in touch with a lawyer at the ACLU to discuss her dismissal,
and also helped her to enroll in computer classes. Ultimately, Carmen
found a new housekeeping job—at a unionized hotel through a network of Spanish-speaking housekeepers that she had developed.
A community-based organization can evolve into a surrogate family, a way to build new “kin” and new social networks. Some of the Vietnamese workers from the American Samoa case who were resettled
in a Vietnamese community in Orange County, California, for example, have capitalized on Vietnamese networks to work in Vietnamese54
owned nail salons outside of their low-income communities. Since
these T visa recipients were resettled through a Vietnamese social service agency, they had immediate access to coethnic social networks.
In contrast, Carmen had to build her own social networks since she
was resettled through a large social service agency in New York City
that is not affiliated with any one ethnic group. She began building
new social networks the day she left forced domestic labor. Her closest friend to this day is a woman she met in the domestic violence
shelter in which she was housed after she left her traffickers’ home.
This friend introduced Carmen to her first posttrafficking roommates
and helped her land her first job in housekeeping at a hotel. Without
having any family or friends from Ecuador in the New York area,
Carmen has had to create a new community. Gregarious and kind,
she has built an extensive network of Spanish-speaking friends over
the past few years, including several domestic workers from whom she
learns of openings at other hotels. She is so willing to try new experiences and radiates such good will that it is easy to see why many
friends have gravitated toward her. Her photo albums document holidays, weekends, and vacations spent with new friends: Thanksgiving
at a boyfriend’s family’s house; the beach with roommates’ cousins visiting from the Dominican Republic; a co-workers’ traditional Mexican wedding in a hotel complete with a Mariachi band; and a smaller
wedding celebration of Argentinian friends held in an apartment. All
are testimony to Carmen’s willingness to begin to trust others again.
Similarly, Maria has tapped into an established network of Filipina
domestic and child-care workers through a Philippine communitybased organization in New York City. A well-run organization that
54
As Suárez-Orozco notes, since immigrants to the United States often settle in
areas of “deep poverty,” they may not find “meaningful work opportunities” in these
communities. Marcelo M. Suárez-Orozco, Right Moves? Immigration, Globalization, Utopia, and Dystopia, in AMERICAN ARRIVALS, supra note 20, at 45, 65.
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counts hundreds of members, it serves as both a social outlet—with
potlucks and other festivities—and an information-swapping center
for its members like Maria. This community organization’s activities
also have helped to ignite Maria’s political consciousness. She now
speaks out about her experiences in forced domestic labor at different
events sponsored by this organization. Even with all of Maria’s support through this organization, however, luck still plays a major role in
her working conditions. Accepting child-care and elder-care jobs in
people’s homes, she must hope that her employers stick to the con55
tract (usually oral) that was originally agreed upon. When one of
Maria’s former employers reneged on their oral agreement that they
would pay her while they were on vacation (Maria was providing child
care for their daughter), Maria quit, explaining, “I will not be taken
advantage of again.” Like Carmen, Maria lives with her boyfriend and
thus was in a position to be out of work for a while. She began looking for a new job through her social networks at the Philippine community-based organization. Thus, by trusting and being trusted by
other members of this community organization, Maria not only has
opened up social opportunities but professional ones as well.
E. Assistance to and from Family Members
Although most T visa recipients did not have family members in the
United States before they sought to migrate there—a fact that shaped
their vulnerability to traffickers in the first place—those who do, like
Eva, experience both lessened social isolation and financial pressures.
Eva and her son moved in with her brother in New York City. Her
brother not only paid their rent, but watched her son while she worked
the night shift bartending. With the money she was able to save on
55
There has been a wide variety of literature on the lack of protections in domestic work. See generally CHANG, supra note 15 (examining the harms of excluding immigrant women from welfare benefits); NICOLE CONSTABLE, MAID TO ORDER IN HONG
KONG: STORIES OF MIGRANT WORKERS (2d ed. 2007) (describing the plight of Filipina
workers in Hong Kong); HONDAGNEU-SOTELO, supra note 15 (describing the experience of Latina domestic workers California); HUMAN RIGHTS WATCH, SWEPT UNDER
THE RUG: ABUSES AGAINST DOMESTIC WORKERS AROUND THE WORLD (2006), available
at http://www.hrw.org/reports/2006/wrd0706/index.htm (describing abuses against
domestic workers around the world); RHACEL SALAZAR PARREÑAS, SERVANTS OF GLOBALIZATION: WOMEN, MIGRATION, AND DOMESTIC WORK (2001) (describing the work
conditions for Filipina domestic workers in Rome and Los Angeles); Joy M. Zarembka,
America’s Dirty Work: Migrant Maids and Modern-Day Slavery (describing how immigrant
women are denied the protections of labor laws), in GLOBAL WOMAN: NANNIES, MAIDS, AND SEX WORKERS IN THE NEW ECONOMY 142, 146 (Barbara Ehrenreich & Arlie
Russell Hochschild eds., 2002).
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household expenses and child care, Eva put her long-term mobility
plans into place. She paid tuition for English-language classes, preparation courses for her GED (which she obtained), and a nursing assistance program.
While Eva received help from her brother who had been established legally and financially in the United States before she arrived in
the United States, T visa recipients who are the sources of assistance
for dependent family members shoulder significant financial and
emotional responsibilities. They become their family members’ lifeline. When I met Gladys, a twenty-one-year-old Mexican woman who
had been trafficked into forced domestic labor in the Midwest, her
parents and siblings were about to arrive in the United States (as part
of the benefits associated with her T visa). Social workers describe
multiple pressures that their clients, the T visa recipients, take on.
Gladys had begun not only to plan her future, but her family’s as well.
She was buzzing with ideas: “My goal is to make my family strong. I
want to explore all kinds of new opportunities.”
Like so many T visa recipients who express anger over the times
their traffickers have stolen from them, Gladys wants to show her trafficker her independence, asserting that “I am not garbage. . . . He
worked on my mind and tried to tell me I am nothing. He told me I
would never learn English—that there are people who have been here
twenty years and have not learned English. But I did it.” T visa recipients who actively seek out new experiences like Gladys—for example, by putting themselves in unfamiliar social spaces; studying English; and taking chances by trusting new co-workers, managers,
neighbors, and friends—will be able to call on these new social networks when needed. It is possible that T visa recipients who are particularly open to transforming their lives and taking risks will better
navigate setbacks and disappointments. As Gladys looked at the uncertainty ahead of her, she was confident in herself and in the possibilities awaiting her—and now, her family. Her exuberance was palpable. She explained, “I want to eat New York.”
CONCLUSION
Recounting Gladys’s desire “to eat New York” would be a hopeful,
and poetic, way to end this Article. But I would be romanticizing what
is ahead of Gladys and other T visa recipients if I did not also underscore the number of challenges that they face. Carmen, with whose
story I opened, lives paycheck to paycheck like many of her fellow migrant co-workers at the hotel. She too hopes to go to school—to work
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as a hair stylist—but the fees are out of reach on her current salary. As
T visa recipients like Carmen dedicate themselves to creating new lives
in the United States, their bills and other responsibilities in the immediate term nibble away at their long-term plans.
As they confront many of the same obstacles to economic mobility
as other low-wage migrants, their accounts of building lives in the
United States after forced labor connect the everyday struggles of T
visa recipients with those of other migrants. Research and policy on
“trafficking” must be part of the ongoing national conversation about
immigration reform and migrants’ rights. Labor protections for lowwage workers and undocumented migrant workers can help prevent
forced labor and assist in the resettlement of “trafficked” individuals
by ensuring against reexploitation. Activities that are antitrafficking
are, at their core, also pro–migrants’ rights.
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519239ANN
research-article2014
THE ANNALS OF THE AMERICAN ACADEMYMigrant Workers in Argentina and the United States
Trafficking,
Scandal, and
Abuse of
Migrant
Workers in
Argentina and
the United
States
By
Denise Brennan
This article examines the varied consequences that the
label “trafficked” holds for migrants and for the organizations that assist them. In the case of migrants from
the Dominican Republic to Argentina, threat of U.S.
economic sanctions prompted the two governments to
document incidents of trafficking by labeling all forms
of migrant labor exploitation as trafficking. Collapsing a
range of coerced and noncoerced labor experiences
under one label has muddied the definition of trafficking. In contrast, U.S. trafficking policy systematically
ignores significant exploitation of labor migrants, in
part because of the volatile politics of immigration in
the United States, and because of the conflation of sex
trafficking with trafficking. The article uses these two
examples of the effects of labeling exploited workers as
trafficking victims to draw attention to the politicization
of the term “trafficking.”
Keywords: trafficking; forced labor; exploitation;
Argentina; United States
T
o warn women about the potential dangers
that accompany international migration
for work, a nongovernmental organization
(NGO) in the Dominican Republic adopted
the slogan “Don’t Believe the Stories.” It was
a tough sell. Throughout the island nation,
nearly every community, no matter how
remote, shows signs of money earned by
women and men who have migrated for work
abroad. Newly built and brightly painted
cement houses, or sturdy additions put on old
ones, stand out in communities where houses
are made of wood, corrugated tin roofs, and
have no “extras” such as paint. Migration off
the island for work is a frequent solution for
Denise Brennan is an associate professor and chair of
the Department of Anthropology at Georgetown
University. She is the author of Life Interrupted:
Trafficking into Forced Labor in the United States
(2014) and What’s Love Got to Do with It? Transnational
Desires and Sex Tourism in the Dominican Republic
(2004), both with Duke University Press.
DOI: 10.1177/0002716213519239
ANNALS, AAPSS, 653, May 2014107
185
108
THE ANNALS OF THE AMERICAN ACADEMY
those who have few opportunities to make economic gains on the island. They
want to “believe the stories.”
Patterns of migration for economic mobility are not new or unusual in the
Dominican Republic’s history. A long-standing practice of searching for riches off
the island has dominated the Dominican Republic’s relations not only with the
United States but also with countries in Europe and Latin America. In the early
2000s, however, the issue of trafficking into forced labor began to change the
Dominican migration experience, as it has for migrants throughout the world. In
response to U.S. pressure, the Dominican government undertook a campaign
that ostensibly sought to protect Dominican women working overseas (Chuang
2006). Applying a liberal definition of “trafficking,” this effort returned women to
the Dominican Republic who had experienced coerced labor as well as those who
had been less severely exploited. This article examines the consequences of the
Dominican campaign and how it responded to the emergence of trafficking as an
issue within the international diplomatic arena following the passage of legislation in the United States—the Trafficking Victims Protection Act of 2000
(TVPA)—and the launch of the State Department’s Trafficking in Persons Report
(TIP report; various years). The first part of the article explores the differences
in the resettlement process for returnees to the Dominican Republic, who told
stories of trouble making ends meet in Argentina (whom I call “exploited”
migrants), and for returnees who told stories of extreme exploitation and, in some
cases, physical abuse and rape (whom I call “trafficked”). I focus on the ways both
groups trust and are trusted in their home communities—processes that are critical to their well-being. The second part of the article then contrasts the
Dominican response to the politics of trafficking in the United States. Pressured
by the TIP report to demonstrate a commitment to fighting trafficking, governments the world over have scrambled to pass antitrafficking legislation, prosecute
traffickers, and find and protect victims. The article considers the consequences
that the label “trafficked” holds for the Dominican returnees and for the organizations that assist them, as well as for migrants in the United States.
The article is based on ethnographic fieldwork with some of the first-designated Dominican trafficking victims, Dominican women who had been living and
working in Argentina. These women may or may not have been trafficked into
forced labor. What is certain is that by labeling them as “trafficked,” the Argentine
and Dominican governments were able to use their identification as trafficked to
improve their standing in the TIP report.1 Travel brokers had told the women
whom I met in the Dominican Republic that they would make good money working as housekeepers or childcare providers for middle-class and wealthy families
in Buenos Aires. The primary difference between these women’s stories of migration and those of the thousands of Dominican women who migrate off the island
every year for work lies in the determination by the International Organization of
Migration (IOM) that these women had been trafficked.2 Some fifty Dominican
women who received this trafficking designation were sent back by the IOM to
the Dominican Republic between 2002 and 2003.3 Upon hearing the Dominican
returnees’ stories, however, I realized that not all their accounts align with common definitions of trafficking.4 While some stories of extreme exploitation
186
Migrant Workers in Argentina and the United States
109
seemed to rise to the level of trafficking, others were stories of bad luck and bad
timing during the downward spiral of the Argentine economy. These Dominican
women earned money in Argentina, just not enough to buy a plane ticket back to
the Dominican Republic. Once designated trafficked, however, the IOM paid for
their return tickets. A trafficking designation, whether from their home country,
the host country’s government, or the IOM, can significantly change the life
course of migrant workers.
Unlike the Dominican migrants in Argentina who elected to return to their
home country, the formerly trafficked persons whom I met in the United States
chose to stay in the United States. Their severe exploitation qualified them for a
new visa, called a T visa, created by the passage of the TVPA in 2000. While the
story in Argentina is one of including and assisting migrants who had experienced
a range of exploitation, only migrants who have experienced extreme exploitation
have received assistance within the trafficking legal regime in the United States.
These definitional issues are central to the ability of governments to control who
may stay within their borders. Ultimately, Argentina was able both to deport
undocumented migrants and to redeem its diplomatic standing with the United
States, whereas the very few T visas issued to date in the United States are in
keeping with a profoundly restrictive immigration regime.
The designation of “trafficked” is not neutral to those who receive this designation and accompanying benefits or to those who are left out. In the case of the
Dominican returnees, this legal designation was broadly applied and lumped
together women who lost their jobs during a nationwide economic downturn in
Argentina with women whose employers took their passports, withheld pay,
forced them into work they had not agreed to do, and in some cases beat and
raped them. While a trafficking designation appears to be have been liberally
applied to a range of cases of migrant exploitation in Argentina, only a paltry
number of T visas have been issued thus far in the United States, under 4,000
to date, even though the TVPA allows for 5,000 a year. Finding trafficked individuals in the United States has been a challenge for law enforcement and social
service providers. Labor and migrants’ rights attorneys agree that only a small
fraction of migrant workers who would qualify for trafficking visas have applied.
The collapse of a wide range of cases of migrant exploitation in Argentina into
the designation “trafficked,” and the small number of T visas issued in the United
States call attention to the politics of immigration and the needs of vulnerable
and unprotected workers in the global economy. The legal regime related to trafficking provides legal remedies and social assistance to only “exceptional”
migrants (Ticktin 2011). In Argentina, for example, an exceptional circumstance—an alleged scandal in the Dominican Embassy—likely pushed the
Argentines and the Dominicans to send home women who would not have met
the standards of “trafficking” in other circumstances. And, in the United States,
I argue that politics over sexual labor and immigration have profoundly affected
antitrafficking efforts and have prevented assistance to more exploited workers
since the TVPA was passed in 2000. Although close to 4,000 have been assisted
since then, an estimated 11 million undocumented migrants remain vulnerable
to their employers’ abuse in the United States.
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Research Methods
This article is based on data gathered from two separate studies. The first study
involved interviews in the Dominican Republic in summer 2003 with ten women
who paid migration brokers to help them migrate to Argentina, and conversations
with twenty other women who attended safe migration workshops in Dominican
communities that have high rates of migration for work abroad. It also draws
from conversations I had in Argentina in 2007 with Dominican migrants living
there and a Dominican attorney who assisted them.
The second study is based on seven years of research (2004–2011) in the
United States on life after trafficking. Social workers and attorneys who oversee
the resettlement of trafficked persons in the United States introduced me to their
clients in several states (California, New York, Florida, Maryland, Virginia, and
Washington, DC). I first conducted formal interviews with these clients between
2004 and 2007 and have continued to follow the lives of those living near me and
in the cities that I visit regularly. During our first meeting, usually in a social
worker’s office or the client’s homes, a social worker or case manager was present
and I tape-recorded our conversations. I spoke with thirty individuals in these
settings, as well as twenty other formerly trafficked persons at community-based
organizations, celebrations, workshops, protests, and conferences.
I also interviewed more than fifty service providers within the trafficking care
regime—social workers, case managers, attorneys, and staff at domestic violence
shelters that provide housing for trafficked clients. And, since I argue that trafficking into forced labor cannot be understood or prevented without learning
from outreach workers in migrant communities, I interviewed more than fifty
migrant worker organizers in low-wage sectors such as agriculture, care work in
private homes and elder care facilities, restaurants, and manufacturing. At
migrants’ and workers’ rights organizations I attended “know your rights” workshops, skill-building activities, and social events; I observed hearings on antiimmigrant legislation and community meetings on wage theft and other crimes
against migrants; and I volunteered at a day-laborer center in Northern Virginia
and at an immigration legal clinic.
“It Won’t Happen to Me”: Dismissing the Risks
of Trafficking
The staff members of the Dominican NGO, whose antitrafficking slogan is
“Don’t Believe the Stories,” face many challenges in crafting safe-migration campaigns in a country whose citizens have been leaving it to solve economic crises
since the mid-1960s (Georges 1990; Grasmuck and Pessar 1991; Levitt 2001;
Sørensen 1998). New transnational social networks have also been documented
between the island and Germany, as Dominican women in the sex trade pursue
visas, through marriage, by feigning love with their European clients (Brennan
2004). No scholar studying the country can ignore the role migration has played
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Migrant Workers in Argentina and the United States
111
in Dominican economic, political, and social life both on the island and within
Dominican communities off the island. Over the past few decades the transnational cultural and economic flows between spaces on and off the island have led
many Dominicans to look outside the Dominican Republic for solutions to economic problems inside the country.
Although there have been many news stories in the Dominican press about
trafficking, women often imagine themselves as too smart to fall for false promises. For example, I heard Dominican sex workers poke fun at a film, “Me duele
el alma” (My soul hurts), which was regularly shown on Dominican television.
They read the film’s didactic message of dangers for migrant women as exaggerated and unlikely. It is not that the women doubt that risks exist, but rather they
imagine that they would be able to outmaneuver would-be abusers.
Many of the returnees from Argentina spoke of women in their hometowns
who had returned from working overseas with signs of financial success. The
Dominican NGO’s community educator drove me around one rural town
where wooden shacks are the norm, yet there also are a few streets with newly
built and brightly painted two-story cement homes, which are rumored to have
been built with money women earned in sex work overseas. I frequently heard
gossip about what kind of work a woman performed overseas, and sex work
often arose as a possibility. Dominican women who migrate for work—any kind
of work—cannot escape scrutiny (Brennan 2004). But for women who return
with empty pockets, their shame is amplified with assumptions about their
naivety or lack of savvy. Although sex work carries stigma in the Dominican
Republic, discretion coupled with material signs of success can mitigate
rumors.
Such moral appraisal of the returnees was evident in my conversations with a
group of women who had never migrated off the island for work.5 They were
impressed by women who “wore their work on their bodies.” As one woman
explained: “Some return with scars on their bodies or they’ve lost their fingernails
from working so hard cleaning houses. It’s the ones who come back with their
nails nice, looking good—who knows what they have been doing?” These women
articulated stories of the money to be made overseas and interest in going themselves, while also recognizing that to come home with a lot of money most likely
meant that the women who had left the island had likely been involved in illegal
activities. They believed that “no one makes money cleaning houses,” but rather
that women who return with a lot of money “sell drugs or sex; they find easier
ways to make money.”
They expressed similar contradictory attitudes toward debt: they were willing
to take on debt to travel, but also acknowledged that they could lose their houses
because of debts they might incur. One explanation of their willingness to take on
such risks is the limited economic opportunities in their small towns (Gallardo
2002). But often, the debts are so large—anywhere from $2,000 to $7,000—that
they are simply unfathomable. One young woman observed that “many of the
women who have gone overseas have lost their houses”; yet when asked if she
would incur similar debt she did not hesitate: “It’s been my dream since I was
little to travel. I want to see someplace else other than here.”
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Migrants Workers in Argentina: Trust, Social
Networks, and Luck
Once migrants cross borders, agreed-upon travel arrangements can fall apart.
Relying on someone else to hold up his or her end of a bargain is risky. Before
their experiences in forced labor begin, potential migrants agree to travel and
work arrangements made by others, and they have no assurances that these travel
brokers and employers will stick to their end of the agreement. These global
workers from marginalized social classes have little control over the location of
work, working conditions, and pay (Ong 1999). If they want to work outside their
own country, they often have to comply—even with great reservations—with the
terms of travel and work set by others.
Both Luisa and Andrea had placed their trust in others.6 They had left the
Dominican Republic the same way: by incurring debt to pay an intermediary who
had arranged for their tourist visa and airplane ticket. These migration brokers
also promised to arrange housekeeping jobs for them in middle-class Argentine
homes. However, once their planes landed in Argentina their stories took different turns. Andrea evaded potential harm by not meeting the ride her intermediary had sent for her. She was lucky to have a Dominican friend living in Buenos
Aires (who was married to an Argentine man) who not only met her at the airport
but who also let her stay with her for a couple of months until she found a job
and saved enough money to rent her own apartment. Her friend had warned her
before her flight: “There are bad people waiting for you at the airport. They bring
you to bad people. Don’t go with them.” Without the same kind of contacts on
the ground, Luisa had no choice but to trust the network that had arranged her
travel. Luisa got into the car sent to pick her up and was ferried directly to a
brothel and her eventual abusers.
Andrea’s experience in Argentina is a story of hustling to make ends meet
through a string of odd jobs in the informal service economy, not one of forced
labor. She left for Argentina because, at age 39, she and her daughters were living with her mother. Andrea wanted to earn enough money to buy her own
house. She and her mother took out a bank loan on her mother’s house to pay
$2,500 to an intermediary for her travel arrangements. Once in Argentina she
worked in elder care, childcare, and assisted a woman with a broken leg. After
months of bouncing between short-term jobs, she settled into a job for three
years, taking care of an 86-year-old man. She found herself out of work, however, when her employer passed away. Looking back on her time in Argentina,
Andrea reflected: “It’s so difficult to make money there, it wasn’t supposed to be
so hard. But with the devaluation, it was. I know women who went before me
who didn’t have the devaluation problem. Without it, life would be good there.
There’s more work than here.” When I met Andrea she still had a mountain of
debt to pay to the bank, and planned to do so by migrating internally to Santo
Domingo to work as a childcare provider. As I drove through her small town, I
saw many boarded-up shops and businesses, indicating the few income-earning
possibilities there. The bleak prospects of steady work in this town help to
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explain why two other local women had also paid intermediaries to migrate to
Argentina for work as domestics. Like Andrea, neither of them experienced
abuse.
Luisa’s time in Argentina, in contrast, was marked not by economic insecurity
and disappointment but by violence. Over the course of six years, Luisa’s abusers
moved her from brothel to brothel and regularly beat and raped her. Luisa
learned to trust no one: distrust suffuses accounts of her experiences with brothel
owners, clients, and the police. She showed me cigarette burns on her arms and
scars on her legs and back, some of which were from being beaten with a pipe by
one of the brothel’s managers. On one occasion she was taken in a car by five
men—clients of a brothel—and raped and beaten. She believes that the brothel
manager, a woman, knew what the men were planning: “One man just wanted to
hit me. I started screaming. They saw I was not brave. Eventually, one opened
the car door so I could leave. I went back to the brothel and told them what had
happened. They said I was a liar.” She had not known where to turn for help since
her experiences with the police had also been violent. Police officers had arrested
her on the street one day, held her for two weeks, and raped her in her cell. She
attributed her arrest to racism and assumptions about her migration status: “I’m
black, that’s why they put me in jail.”
Luisa finally was able to leave her abusers after she managed to get some
money from a client to call her mother. Because her mother had not heard from
Luisa, she reached out for help and had been put in touch with an NGO in the
Dominican Republic whose staff gave her the name and telephone number of a
Dominican lawyer, Nancy, in Buenos Aires. Luisa called Nancy and Nancy
helped Luisa escape. Without her passport or any extra clothes or other personal
possessions, Luisa stayed with Nancy while they contacted the IOM.
Writing about how those who have suffered through brutality resume their
lives, anthropologists Veena Das and Arthur Kleinman question how these people simultaneously try to generate “a renewed capability to address the future”
while they are caught up in the everyday (Das and Kleinman 2001, 4). Mired in
and at times overwhelmed by the demands of daily living, formerly trafficked
persons must learn “to inhabit the world, or inhabit it again” through the “everyday work of repair” (Das 2000, 208). By tending to the ordinary tasks and chores
of resettlement, what I call everyday lifework, formerly trafficked persons begin
to move beyond the extraordinary brutality of forced labor (Brennan 2014). Trust
is a critical issue for those who have been duped and abused—both trusting others and being trusted (Daniel and Knudsen 1996). The Dominican returnees
who experienced forced labor have great difficulty trusting again. Both while
exiting their situation of forced labor and immediately afterward, trafficked individuals are asked to put their trust in strangers: law enforcement; immigration
officials; attorneys; social workers; and in the case of the Dominican women in
Argentina, IOM officials. As the next section shows, Dominican women who had
experienced either run-of-the-mill exploitation or forced labor in Argentina had
divergent experiences in their attempts to reintegrate into their home communities and with being reaccepted.
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Returning to the Dominican Republic
The staff of the Dominican NGO charged with overseeing the returnees’ “reintegration” into the Dominican Republic (such as by providing medical and mental health services along with self-esteem and skill-building workshops), met the
women at the airport in Santo Domingo. Although approximately fifty women
had been returned by the time I was there in summer 2003, the NGO had lost
touch with all but the ten women whom I met. Some of the other women gave
false names and addresses, while others already had left the island again for work
overseas. While in the Dominican Republic I relied on a caseworker at the
Dominican NGO to introduce me to the returnees with whom they were still in
contact. Since I was unable to speak with these other returnees, I could not ascertain whether they had experienced coerced labor in Argentina, as the IOM had
determined. It was also unclear whether, upon their return, they were vulnerable
again to their alleged original traffickers who may have sent them overseas once
again. It is possible that they may have made such arrangements themselves.
Both groups of Dominican returnees—exploited and trafficked—had begun
their journey to Argentina the same way: they paid Dominican men and women
who arranged for their travel. None of the returnees told stories of kidnapping or
of being forced into transit. Rather, the experiences of severe exploitation for
some began once they landed in Argentina. Many ended up being interviewed by
the IOM because at some point during their stay in Argentina they were put in
touch with or escaped with the assistance of Nancy, the Dominican lawyer living
in Buenos Aires. Nancy was passionately dedicated to helping Dominican women
who were exploited in Argentina. Her actions had a high level of risk, including
going into brothels and arranging for the escape of women being held against
their will. The returnees were deeply grateful and moved by Nancy’s efforts and
spoke about her as saving their lives. Nancy is the key connection between many
of these women and the IOM. Because it was a one-woman rescue team, however, the story of assistance and return in Argentina is not easily replicated in
other sites throughout the world—nor, given the dangers, should it be.
Of the returnees from Argentina, migrants like Andrea who experienced economic hardship—but not severe exploitation—seemed to have had an easier time
settling back into their communities and with being reaccepted than women who
experienced forced labor. They spoke openly with their family, friends, and
neighbors about their experiences in Argentina. Some even enjoyed a kind of
increased status as seasoned travelers with knowledge of life in another country.
Neighbors planning to migrate off the island came to them for advice. Andrea
visited with her neighbors daily, especially with the two other women who also
had migrated to Argentina. Like Andrea, they did not describe being exploited,
rather they recounted having had a tough time making ends meet during the
economic crisis in Argentina. In fact, they mused that they would have made
good money—while working in the same insecure service jobs—if the Argentine
economy had been healthy. Most strikingly, Andrea described her experiences in
Argentina as making her stronger: “Living in Argentina taught me a lot. No one
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took advantage of me. They saw me and knew not to try. Before I went I was shy,
but now I talk to everyone. It made me stronger.”
The self-assured language of empowerment that Andrea and her friends used
was completely absent in my interviews with the Dominican women who had
experienced forced labor in Argentina. The latter talked about being ashamed,
overwhelmed, and lost. Far from being open about their experiences overseas,
they instead tried to make themselves invisible and retreat from all but the most
unavoidable social encounters. They also had severe trouble trusting again. For
example, Luisa explained that she stayed away from neighbors and kept to herself. Nor did she tell her parents, with whom she and her daughter were living,
of the violence she endured in Argentina. She had lost touch with all her friends
while away in Argentina for six years; she was acutely isolated. The only friend
she had was an NGO community educator.
Despite the returnees’ divergent experiences in Argentina, upon their return
they did share similar stressors. None of the women returned with any money
and they were also burdened by debt either to a family member, a loan shark, or
a bank. Returning to children who had grown in their absence, they struggled to
reconnect and rebuild their relationships. Many returnees were ashamed to reunite with their children with nothing to show (money or material goods) for their
time away. In fact, while I was in Argentina in 2007, I went with Nancy to a hospital where a Dominican woman, Carmen, was receiving medical care. Carmen
was scheduled to depart for the Dominican Republic in a few days, with the
assistance of the IOM. She was distraught. Not only did she not have any of her
own personal possessions—which were left behind in the brothel where she had
been living—but she had no money for gifts for her children. Nancy and I were
able to find presents for her children at a toy store near the hospital. These small
gifts were a far cry from the monetary gains that Carmen had envisioned for
herself in Argentina.
A psychologist who had counseled some of the Dominican returnees in Santo
Domingo emphasized that loss of respect by their teenage children was particularly troubling for the women. Children also had experienced a great deal of
stress living apart from their mothers and worried that their mothers might leave
again. On several occasions when speaking with returnees in their home communities throughout the island—with their children running in and out of the
house—I saw their children’s faces drop when their mothers raised the possibility
of seeking to work overseas again.
Although all returnees share some stressors, conditions of forced labor can
create particular problems for resettlement. One such variable was the connection with family members. Whereas women in unforced labor bought telephone
cards and spoke with their families on a regular basis (usually once a week),
women in forced labor situations were unable to keep in contact with their families, which resulted in adverse consequences after they returned home. Luisa’s
daughter, for example, was eight years old when Luisa left for Argentina. In the
first weeks of Luisa’s return, the daughter, then 15 years old, rejected her, turning
instead to the grandparents who had been raising her. Women who were brutalized while in Argentina report that they avoided neighbors and old friends when
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they returned home. The NGO’s psychologist also described that some of the
women who experienced psychological abuse and violence struggled with chronic
pain, memory loss, and a host of effects associated with experiencing traumatic
events (such as depression, inability to sleep, and loss of appetite). The workshops that the NGO offered were a critical social outlet. However, given these
two groups of women’s differing needs and desires to be around others, they
likely experienced these sessions in significantly different ways. Placing these two
groups of women together in various activities—set in motion by IOM’s designation—could result in further stigmatization, shame, and silencing of women who
were in forced labor.
Measuring Exploitation and the Long Reach
of U.S. Policy
Since the Dominican returnees describe widely differing levels of exploitation
while working in Argentina, why did the IOM decide they all had been trafficked
into forced labor? The difficulty of evaluating one exploitative practice against
another might have played a role. Although I make distinctions between Dominican
women who worked in conditions of forced labor in Argentina and those who did
not, even those who would not be considered “trafficked” within most legal frameworks nonetheless experienced some form of exploitation while working in
Argentina. The returnees whom I met were often paid poorly and in some instances
not at all. For example, one woman was not paid by a restaurant owner for whom
she had worked washing dishes for a week. Although she was clearly exploited, the
restaurant owner had not taken her passport and had not threatened her or her
family back home, so she was able to walk away (without her earnings) and find
another job. This story illustrates the problem of measuring harms against migrant
workers. In the “absence of a global political consensus on minimum employment
rights, and of cross-national and cross-sector norms regarding employment relations,” it is “extremely difficult to come up with a universal yardstick against which
‘exploitation’ can be measured” (Anderson and O’Connell Davidson 2002, 11).
Legislation and international protocols on trafficking sort exploited workers
into trafficked and nontrafficked categories to determine who is eligible for benefits and who is not. In many low-wage worksites around the globe, however, it is
not easy to evaluate degrees of exploitation since those working under coercive
conditions may labor side by side with workers who have a marginal ability to
leave. In these sites there is often a range of experience between the poles of fair
working conditions and severe exploitation (Anderson and O’Connell Davidson
2002, 12). In the case of some of the returnees from Argentina, their experiences
fell somewhere in the middle, a kind of liminal zone of labor exploitation. Since
in most countries—including the Dominican Republic and Argentina—antitrafficking assistance is generally given only to those who are determined to be at one
end of the spectrum of exploitation, those who do not receive a trafficking designation are left out.7
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Political scandal and the threat of economic sanctions are likely explanations
why a diverse group of Dominican migrants were all labeled “trafficked.” First, a
high-profile corruption case in the Dominican embassy in Argentina (where a
Dominican official was accused of trafficking Dominican women into the country
and of owning a brothel) resulted in Dominican and Argentine officials scrambling to clean things up (Carbajal 2002a, 2002b, 2002c; DR1 Daily News 2002).
Second, the threat of economic sanctions associated with being categorized as
having Tier 3 status in the U.S. State Department’s annual TIP Report influenced
the direction of Argentine policy (the Dominican Republic was ranked in this
lowest tier, Tier 3, in the 2003 TIP Report). I argue that the possibility of economic sanctions, combined with disastrous international press on the scandal,
may partly explain the hasty identification of Dominican women in Argentina as
trafficked. It is unlikely that the Dominican women would have been repatriated
if the scandal had not occurred.
The radiating effects of the TIP Report are seen quite clearly in the actions of
the Dominican and Argentine governments. While the threat of U.S. economic
sanctions pressures states to act, in the Dominican-Argentine case the two governments’ rush to produce “trafficked victims” resulted in a muddied definition
of “trafficking.” Calling all forms of migrant labor–exploitation “trafficking”
dilutes the full force of the term and collapses a range of harms that delegitimizes
the experiences of severely exploited persons. Such a collapse makes it less likely
that social services will be developed to focus on the specific needs of truly trafficked individuals (particularly when, for example, women who were in situations
of forced labor share the same workshops with women who were not). Moreover,
programs that talk about the very real risks of migration and onerous debts
incurred via migration can be undermined by returnees who were not in forced
labor but travelled home as such courtesy of the IOM. These women may dismiss
the risks and tell others that it is easy to dodge abusers and that only the naïve
fall prey to traffickers’ trickery. Since statistics on trafficking worldwide are notoriously unreliable, this collapsing of terms also has significance beyond the
Dominican Republic and Argentina, as it moves us further from a reliable picture
of both the global scope of trafficking as well as the scope of less-severe forms of
exploitation (U.S. Government Accountability Office 2006, 2007).
Trafficking and Labor Abuse in the United States
Much like the cases of exploitation in Argentina, there are cases of exploitation in
the United States that are so severe that they can easily qualify as trafficking (Kim,
Song, and Panchalam 2009). There also are cases that are not so clear and raise the
question of how to evaluate different exploitative practices (Chácon 2010; Haynes
2009). In the United States, the TVPA sorts exploited workers into trafficked and
nontrafficked categories, a binary conceptualization of exploitation that obscures
and effaces a broader range of migrant labor abuses (Brennan 2014). Most migrant
workers in the United States—both those who are undocumented and those with
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temporary work visas—have experienced some exploitation at some point. Low
pay, no pay, unsafe work conditions, job insecurity, and lack of channels for redress
are routine in contemporary “sweatshops” across labor sectors (Gordon 2005).
As those in forced labor pick produce or wash dishes or sew clothes alongside
other migrant workers, they may appear to be working under the same conditions
as their coworkers. That is not the case. If these forced laborers were not necessarily physically restrained, their attorneys, who are seeking to secure T visas for
them, must explain why the laborers did not walk away.8 They must prove their
clients’ perception of threat, which varies from individual to individual. Proving
this “subjectivity of coercion” has not been easy, and attorneys have been frustrated by the narrowness of the law (Brennan 2014). Extending protections and
benefits to more individuals “would have the advantage of undermining the
exploitative labor practices that have been allowed to thrive at the unpoliced
intersection of labor law and immigration law” (Chacón 2010, 1635). Instead, by
reserving relief for only a special few, the “growing chasm between the treatment
of trafficked victims and all other unauthorized migrants” has further fueled
“policies that limit the official scope of trafficking prosecutions” (Chacón 2010,
1635).9 And those whose exploitation is deemed not coercive enough to qualify
as trafficking risk deportation.
Asking to stay vs. asking to leave
As difficult as it is to qualify for a legal designation as trafficked in the United
States, those who do can pursue a T visa, and later a green card, to stay in the
country. The option of staying in a restrictive U.S. immigration regime in part
explains why so few have qualified. It is not a surprise that it is far more difficult
to meet the criteria to stay in a host country (judged by government officials) than
it is to meet the criteria to be voluntarily returned (judged by staff of an international organization). Yet once returned to one’s home country, IOM returnees,
much like the trafficked persons who elect (and are allowed) to stay in their host
country, can receive services not available to others. In these cases the designation is most important, not which entity has granted it. Dominican returnees had
access to social and medical services, paid for by the IOM, that were rarely available in a country virtually without a social safety net.
Providing these services after trafficking can cause tension—both in the
workshops in the Dominican Republic that mix severely abused persons with
those who experienced wage theft, as well as in migrants’ rights and other coethnic community-based organizations in the United States. A group of friends—
formerly trafficked persons from the Philippines, Indonesia, and Mexico—told
of coethnics’ gossip about them: “Your own community can judge you. They
blame you.” One woman, who had experienced particularly vicious scorn from
her community of coethnics, explains, “With [formerly trafficked persons] I am
not ashamed. I never feel judged. But I do with others in my community.” The
staff at a domestic workers’ rights organization in the Washington, DC, area
described that when a client receives a T visa there is joy, jealousy, and tension.
Those who do not qualify for immigration relief know that if they remain in the
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United States, they likely will live and labor in a kind of labor purgatory, in the
shadow of the law. This liminal zone of abuse and limited rights also lays the
groundwork for more egregious forms of exploitation to thrive—unchecked and
unreported.
Across the country, I heard migrants’ rights organizers in low-wage communities tell the same story of worry, vulnerability, poverty, and uncertainty. An organizer in the Washington, DC, area spoke about domestic workers who were afraid
that their employers would fire them if they knew the women attended domestic
workers’ rights meetings. A day laborer organizer in Virginia explained that he
had never met a worker who has not been cheated by an employer. Farmworker
activists in California recounted stories of foremen sexually assaulting female
workers, widespread wage theft, and regular exposure to pesticides. And an
organizer who reaches out to domestic workers described an extensive web of
employer control: “Their employers know they don’t have family here. And since
they control their hours so much, the employers know that their workers have not
made friends. They know they are alone here, so if they [the workers] say they
have to leave for a few hours, they may even follow them.”
The low number of T Visas issued
A threatening or coercive work environment, in which employers also monitor
their employees’ activities after work, may not be trafficking, but it is arguably
close to it. Trafficking policy that provides immigration relief and social-service
assistance for severely abused workers cannot be separated from the larger context of rampant exploitation of low-wage migrant workers. The number of T visas
issued remains low, in part because of the risks that confront undocumented
individuals (and those with temporary work visas) who report abuse; those whose
cases are not exploitative enough to qualify for trafficking status can be deported.
Low wages, even no wages, do not guarantee an exploited worker a trafficking
designation.10 The legal designation of trafficked delivers migrants without legal
status into a state of immigration grace. Not only saved from criminalization and
deportation, trafficked persons jump to the head of the line in the U.S. government’s relief regime. Providing protections for only the most extreme cases of
exploitation sidesteps the divisive politics of immigration reform. Individuals
designated as trafficked are just one part, a small part, of a much larger story of
everyday exploitation of migrants in the U.S. labor force. The demand for lowwage workers; the absence of federal immigration reform that offers protections;
local- and state-level antimigrant policies (such as 287[g] agreements, “secure
communities,” and Arizona-style laws); and workers’ fear of detection, detention,
and deportation set the stage for this widespread abuse of migrants.
The limited number of T visas issued to date also can be explained by the Bush
administration’s focus on ending prostitution in the name of fighting trafficking
(Brennan 2008). Law enforcement officials targeted their antitrafficking efforts
on brothels, strip clubs, and massage parlors. With antiprostitution views and a
conflation of prostitution with trafficking institutionalized in U.S. government
policy and practice, a moral agenda dictated who “trafficking victims” were, who
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was worth finding, and which organizations would assist with rescues and aftercare (Chuang 2010; Markon 2007; Weitzer 2007, 2011; Vance 2011; Zhang 2009).
Attorneys for foreign nationals who were severely exploited in industries other
than the sex sector were frustrated that investigations and prosecutions were more
aggressively sought in cases classified as “sex trafficking.” The focus on sex reached
a peak during the TVPA reauthorization process in 2007 when the version proposed in the Senate redefined all prostitution as trafficking and made it a federal
crime. Had this provision passed (it did not), it would have directed the Justice
Department to begin prosecuting all prostitution-related crimes across the United
States—what in the past were local-level mandates. This obsession with ending
sex work not only has prevented investigations of labor sectors other than the sex
sector but also has rendered sex workers more vulnerable to abuse as they work
underground to avoid detection from law enforcement. Even though “know-yourrights” workshops are effective and low-cost tools to prevent a range of exploitation, community advocacy groups generally have not partnered with sex workers’
rights activists. And, in an environment of local anti-immigrant legislation and
policies, migrants’ rights organizers understandably have not collaborated with law
enforcement on efforts to report or prevent worker exploitation.
If federal law ensured worker protections for a range of workers, not just the
most exploited, authorities would most likely uncover more cases of forced labor.
Peer-led rights-based outreach in places where migrants work and live is a first
step to informing low-wage workers of their rights, which can reduce the incidence of forced labor. This basic rights work requires skillful and trusted community leaders.
Conclusion
Trafficking into forced labor is at one end of a continuum of everyday exploitation
of migrant workers (Brennan 2014). My research in the Dominican Republic with
returnees and in the United States with T visa recipients and other migrant workers who have experienced exploitation—just not enough to qualify as trafficked—
highlights the relationship among the migrants’ desire to migrate for economic
security, reliance on recruiters and other intermediaries to do this, indebtedness
to these recruiters and intermediaries, and employers’ abuse. Antitrafficking
measures should address this entire spectrum of exploitation and offer protections
to a range of migrant workers who are exploited—not just the most extreme cases.
This article shows that often the need to migrate to secure significant incomeearning opportunities may outweigh other considerations, including the accrual
of debt. Stopping out-migration is unrealistic in communities with limited economic opportunities and a long history of crossing international borders for work.
Instead, arming would-be migrants with information about their rights and limiting their debt can go a long way to reducing their vulnerability to abuse.
Conversations with Dominican women in safe-migration workshops who had not
yet left the island, as well as with the returnees from Argentina, revealed that
they believed they had to leave their communities if they wanted to progresar or
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“get ahead.” Some of the returnees’ towns that I visited were so bereft of incomeearning possibilities that few men remained in the town. Instead, they had
migrated internally to Santo Domingo or had risked their lives in small boats to
go to Puerto Rico, with the hope of eventually traveling to the United States.
Returnees described women from their communities who were rumored to have
been trafficked overseas, had managed to get back home, but had already left
again for work abroad. So, too, some of the returnees from Argentina were willing to take their chances again. Maria Cristina, a 45-year-old mother of two teenagers, who had been trafficked into sex work in Argentina, planned to leave her
small town once again. She explained, “I’m not going to tell you, ‘No, I’m not
going to travel again.’ I would like to go to Italy or Spain.” She worked part time
at a hair salon where I met her, but her earnings did not come close to paying her
bills. Her electricity had just been turned off, as it had been many times before.
When I asked how she thought she could save money working overseas, especially if she works in the informal economy without documentation, she smiled
and threw up her arms, “Who knows? I’ll do whatever, washing, cleaning, restaurant work. Life is not so hard. I’m not afraid of work.”
Many poor Dominican female returnees make preparations to leave again
soon after they return home. This revolving migration door presents NGOs with
many challenges. How can they convince women with few income-earning
opportunities in their home communities to “not believe the stories” of work
opportunities overseas? When international organizations and governments label
a wide range of returning migrants as trafficked, it further neutralizes the message of the precariousness of undocumented border crossing. In Maria Cristina’s
migration calculus, for example, she sees taking yolas (small boats) to Puerto Rico
as more risky than taking out large loans and trusting strangers. “I’ll try anything.
But go in a yola—no! I’ve already had the experience of traveling. Going to a
different country is … okay, you learn.” Women such as Maria Cristina take a
chance that their migration experience will be safe and financially rewarding:
they believe some stories and dismiss others as they set out for work once again.
Notes
1. The Dominican Republic was in Tier 2 in 2001 and 2002, in Tier 3 in 2003, and on the Tier 2 Watch
List in 2004 and 2005.
2. One report estimated that between 12,000 and 15,000 Dominicans entered Argentina between 1995
and 2002 (OIM 2003).
3. The IOM uses the definition of trafficking set out by the UN Palermo protocols: “The recruitment,
transportation, transfer, harbouring, or receipt of persons, by means of the threat or the use of force or
other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of
vulnerability, or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum,
the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services,
slavery or practices similar to slavery, servitude, or the removal of organs” (IOM 2003).
4. The TVPA defines “severe forms of trafficking in persons” as 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
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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” (Available from www.state.gov/documents/organization/10492.pdf).
5. The NGO overseeing the resettlement of the Dominican returnees from Argentina also conducts
trafficking prevention workshops in towns where many women in the community have left to find work
overseas.
6. All names in the article are pseudonyms.
7. In the United States exploited workers lacking documentation can file wage and hour complaints
with the Department of Labor.
8. T visa applicants in the United States have access to legal counsel from staff attorneys at their
social-service providers or migrants’ rights organizations, or they are represented by pro bono attorneys
who work with these organizations.
9. The U.S. government does not provide protections to the large number of undocumented workers
who endure a range of abusive labor practices. By limiting the TVPA’s assistance to a “narrowly defined
subset of trafficking victims,” Congress “deliberately chose to exclude a broad range of labor exploitation
from the reach of the TVPA” (Chacón 2006, 2980).
10. Such labor abuses violate the International Labour Organization’s definition of decent work as
“work that is productive and delivers a fair income, security in the workplace, and social protection for
families, better prospects for personal development and social integration, freedom for people to express
their concerns, organize, and participate in the decisions that affect their lives, and equality of opportunity
and treatment for all women and men” (Siddiqui 2005).
References
Anderson, Bridget, and Julia O’Connell Davidson. 2002. Trafficking – a demand-led problem? A multicountry pilot study. Stockholm: Save the Children Sweden.
Brennan, Denise. 2004. What’s love got to do with it? Transnational desires and sex tourism in the
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Brennan, Denise. 2008. Competing claims of victimhood? Foreign and domestic victims of trafficking in
the United States. Sexuality Research and Social Policy 5 (4): 45–61.
Brennan, Denise. 2014. Life interrupted: Trafficking into forced labor in the United States. Durham, NC:
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Carbajal, Mariana. 9 May 2002 (2002a). Fin de la pesadilla Argentina. Página/12.
Carbajal, Mariana. 9 June 2002 (2002b). Una testigo protegida involucra al embajador dominicano en un
escandalo. Página/12.
Carbajal, Mariana. 10 May 2002 (2002c). Una trama siniestra que sale a la luz. Página/12.
Chacón, Jennifer M. 2006. Misery and myopia: Understanding the failures of U.S. efforts to stop human
trafficking. Fordham Law Review 74 (6): 2977–3040.
Chacón, Jennifer M. 2010. Tensions and trade-offs: Protecting trafficking victims in the era of immigration
enforcement. University of Pennsylvania Law Review 158 (6): 1609–53.
Chuang, Janie A. 2006. The United States as global sheriff: Using unilateral sanctions to combat human
trafficking. Michigan Journal of International Law 27 (2): 437–94.
Chuang, Janie A. 2010. Rescuing trafficking from ideological capture: Prostitution reform and anti-trafficking law and policy. University of Pennsylvania Law Review 158 (6): 1655–1728.
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Das, Veena. 2000. The act of witnessing: Violence, poisonous knowledge, and subjectivity. In Violence and
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Das, Veena, and Arthur Kleinman. 2001. Introduction. In Remaking a world: Violence, social suffering,
and recovery, eds. Veena Das, Arthur Kleinman, Margaret M. Lock, Mamphela Ramphele, and
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Kim, Kathleen C., Charles Song, and Srividya Panchalam. 2009. Conversation with two anti-trafficking
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Markon, Jerry. 23 September 2007. Human trafficking evokes outrage, little evidence. Washington Post.
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OIM (Organización Internacional para Las Migraciones). 2003. Migración, prostitución y trata de mujeres
dominicans en la argentina. Buenos Aires: OIM.
Siddiqui, Tasneem. 2005. International labour migration from Bangladesh: A decent work perspective.
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Sørensen, Ninna Nyberg. 1998. Narrating identity across Dominican worlds. Transnationalism From
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Transaction Publishers.
Ticktin, Miriam. 2011. Casualties of care: Immigration and the politics of humanitarianism in France.
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U.S. Government Accountability Office. 2007. Human trafficking: A strategic framework could help
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Vance, Carole. 2011. States of contradiction: Twelve ways to do nothing about trafficking while pretending
to. Social Research 78 (3): 933–48.
Weitzer, Ronald. 2007. The social construction of sex trafficking: Ideology and institutionalization of a
moral crusade. Politics and Society 35 (3): 447–75.
Weitzer, Ronald. 2011. Sex trafficking and the sex industry: The need for evidence-based theory and legislation. Journal of Criminal Law and Criminology 101 (4): 1337–70.
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http://nsrc.sfsu.edu
December 2008
Vol. 5, No. 4
Competing Claims of Victimhood? Foreign and Domestic
Victims of Trafficking in the United States
Denise Brennan
Abstract: This article considers how, in the United States, a rhetorical and policy shift that focuses on
domestic youth in prostitution affects the broader effort to fight trafficking of foreign nationals in industries other than sex work. Common sense suggests that with resources directed toward finding domestic youth in forced prostitution, fewer efforts will be made to reach foreign workers exploited in work
sites outside of the sex industry. The author contends that the low numbers of individuals found thus
far in forced (nonsexual) labor nationwide have been, in part, a consequence of not looking. This article also examines a number of factors that prevent migrant workers who have experienced a range of
exploitation from coming forward about these abuses. In an environment of undocumented migrants’
increasing distrust of law enforcement, there are many challenges to finding individuals who are subject to forced labor.
Key words: migrant exploitation; antiprostitution; trust; sex trafficking; domestic youth
It has not been easy finding trafficked persons in the
United States. Although there is widespread consensus—
among law enforcement, immigrant labor organizers
and attorneys, and social workers—that large numbers
of individuals are held in situations of forced labor, finding them has been a challenge. Since trafficking legislation was passed in 2000—the Trafficking Victims
Protection Act (TVPA)—fewer than 2,000 people have
been designated as trafficked (U.S. Department of State,
2007).1 Yet the U.S. Department of State (2004) has
estimated that 14,500 to 17,500 individuals are trafficked annually from all over the world into the United
States. With the TVPA allowing up to 5,000 T visas to be
issued every year, by the end of 2007, potentially as
many as 35,000–40,000 individuals could have received
T visas. The large gap between the number of people
assisted as formerly trafficked persons and the number
allegedly entering the United States every year has been
noticed in many quarters—including in Congress. 2
Throughout the TVPA’s reauthorization process in 2005
1 The Trafficking Victims Protection Act of 2000 defined
“severe forms of trafficking” as follows:
a. Sex Trafficking in which a commercial sex act is
induced by force, fraud, or coercion, or in which the
person induced to perform such an act has not attained
18 years of age or; b. 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. (U.S. Department of State,
2007, p. 7)
2 Congress commissioned the U.S. Government
Accountability Office to analyze U.S. anti-trafficking efforts
overseas (U.S. Government Accountability Office [GAO],
2006) and to examine interagency collaboration on trafficking cases in the United States (GAO, 2007). The first
report commented on the weak methodologies used to generate the U.S. government’s estimates of human trafficking
worldwide; the second pointed to the need for more interagency cooperation when combating trafficking in the
United States.
Address correspondence concerning this article to Denise Brennan, Department of Sociology and Anthropology Program,
Georgetown University, 37th and O Street NW, Washington, DC, 20057. E-mail: [email protected]
Sexuality Research & Social Policy, Vol. 5, Issue 4, pp. 45–61, electronic ISSN 1553-6610. © 2008 by the National Sexuality
Research Center. All rights reserved. Please direct all requests for permissions to photocopy or reproduce article content
through the University of California Press’s Rights and Permissions website, http://www.ucpressjournals.com/reprintInfo.asp
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SEXUALITY RESEARCH & SOCIAL POLICY
and the still-pending 2007 reauthorization, members
of Congress have been asking where all of the money allocated to fighting trafficking has gone and why government agencies have not found more individuals in forced
labor. Consequently, there has been a scramble to produce trafficked persons.3
This pressure has had two significant effects, the
first of which has been to make more money available for
finding trafficked persons. As a result, over the past few
years, 42 anti-trafficking task forces were put in place
throughout the United States to identify and assist trafficked persons. Intended to be victim-centered, the task
forces join law enforcement with staff from social-service
organizations that resettle trafficked persons and staff
from community-based organizations that work with
immigrant communities. The second effect of this pressure to produce trafficking victims has been to increase
attention and resources to one part of the TVPA that
grants protections to domestic youth in sexual exploitation. The trafficking legislation currently up for reauthorization in the Senate, the William Wilberforce
Trafficking Victims Protection Reauthorization Act of
2007, redefines all prostitution as trafficking. If prostitution becomes a federal crime, the U.S. Department
of Justice would be charged with prosecuting all such
cases. The U.S. Department of Justice outlined its
“significant concerns” (Benczkowski, 2007, p. 1) in a letter addressed to the Committee on the Judiciary in
November 2007.4 Under the proposed reauthorization, the
number of trafficked persons found would increase significantly. Furthermore, young people—U.S. citizens—may
3 Since 2001, the U.S. government has dedicated approximately $375 million for international projects (U.S.
Government Accountability Office, 2006). Furthermore, in
a letter that introduced the Report on Activities to Combat
Human Trafficking: Fiscal Years 2001–2005, Alberto
Gonzales wrote that since 2004, the U.S. Department of
Justice has “awarded grants totaling more than $30 million
to institute 32 multidisciplinary anti–human trafficking
task forces and 21 victim service providers in communities
across the nation” (U.S. Department of Justice, Civil Rights
Division, 2006, p. i).
4 The letter from the Department of Justice (Benczkowski,
2007) warned that
due to the high-volume of prostitution-related crimes,
the Federal government lacks the necessary resources
and capacity to prosecute these offenses. Therefore, to
the extent that this expansion of the Mann Act would
federalize the criminal prosecution of pandering, pimping, and prostitution-related offenses, it is unnecessary
and a diversion from Federal law enforcement’s core
anti-trafficking mission. (p. 9)
December 2008
eventually comprise most trafficking victims5 in the
United States.
In a letter to U.S. senators regarding the reauthorization, a group of trafficking service providers, advocates,
scholars, and human rights lawyers noted that the new sex
trafficking statute federalizing prostitution-related crimes6
“will instantaneously and dramatically increase the estimated and actual number of ‘trafficking’ victims in the
U.S.” because the “estimated number of prostitutionrelated arrests is around 100,000 a year” (Alexandria
House et al., 2008, ¶ 8).7 The number of trafficking victims
would increase such that “those engaged in prostitution
would outnumber true trafficking victims nearly six to
one” (Alexandria House et al., ¶ 8). Consequently, they
would have to “compete for access to funding, resource
programs and every other aspect of assistance to the real
trafficked individuals” and “fewer true victims” would be
identified (Alexandria House et al., ¶ 8).
Although abuses within the sex industry—in particular for young people—are horrific and need attention,
one kind of abuse and one kind of victimhood should not
be privileged over others. Common sense suggests that
with rhetoric focused on and resources directed to finding domestic youth in prostitution—as well as non–U.S.
citizens in prostitution—fewer efforts will be made to
reach foreign workers in industries outside of the sex
industry. Without looking much beyond the sex industry for exploitation of migrant workers, of course, such
exploitation will not be found. I contend that the low
numbers of individuals found thus far in forced (nonsexual) labor nationwide has been, in part, a consequence of not looking. With ending prostitution a clear
priority of government officials, attorneys for foreign
nationals who were severely exploited in other industries
5 Following the recommendation in the Women’s
Commission for Refugee Women and Children (2007)
report, I also use the terminology trafficked person rather
than victim “to underscore a rights-based rather than a
criminal perspective” (p. 5). I use terms other than victims
(except when I refer to the language used by certain agencies
or the law). Throughout this article, I use the terms trafficked
persons, formerly trafficked persons, individuals in forced
labor, or T visa recipients to describe foreign nationals who
work or have worked in forced labor in the United States.
6 I am one of the signatories of this letter.
7 The proposed Trafficking Victims Protection
Reauthorization Act of 2007 would create a new crime of
sex trafficking which would authorize the Department of
Justice to prosecute any individual whose action “induces
another to engage in prostitution” (Alexandria House et al.,
2008, ¶ 3).
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are frustrated that investigations and prosecutions have
been more aggressively sought in cases classified as sex
trafficking than in cases of forced labor. In 2004, for
example, there was an overwhelming focus on cases
involving sexual exploitation. Of the 59 prosecutions
initiated against traffickers in fiscal year 2004, “all but
one of those cases involved sexual exploitation” (U.S.
Department of Justice, 2005, p. 15).8
Despite the fact that no data are available on how
law enforcement decides to undertake investigations
into extreme abuses in one industry and not another,9
this article seeks to understand the challenges that may
lie ahead for undertaking investigations in work sites
where migrants labor. This article examines a number of
factors that prevent migrant workers—who have experienced a range of exploitation, not just forced labor—
from coming forward with their abuses. I map these
8 The 2004 assessment also revealed an emphasis in
fiscal year 2003 on prosecuting cases related to sexual
exploitation, with 9 of the 12 cases filed for trafficking prosecutions charted in the category sex (U.S. Department of
Justice, 2004b, p. 27). The majority of cases filed in 2006
also were sex cases (with 22 cases of “All Trafficking
Prosecutions” categorized as sex and 10 as labor; however,
under cases listed as “TVPA [Trafficking Victims Protection
Act of 2000] Prosecutions” the case load is nearly split
between 10 cases categorized as labor and 12 as sex (U.S.
Department of Justice, 2007, p. 17).
9 The majority of investigations of trafficking in persons
(of adult foreign nationals) are undertaken by agents in
the Federal Bureau of Investigation (FBI) and in the U.S.
Immigration and Customs Enforcement (ICE). The 2007
Attorney General’s Annual Report to Congress on U.S.
Government Activities to Combat Trafficking in Persons
reported that in fiscal year 2006, the FBI opened 126
investigations and made 140 arrests, but it does not make
clear what kinds of cases these are (U.S. Department of
Justice, 2007). Also, in fiscal year 2006, ICE opened 299
human trafficking investigations, “which consisted of 85
investigations of forced labor and 214 investigations of
commercial sexual exploitation” (U.S. Department of
Justice, p. 14).
The figures on domestic youth exploited in prostitution
are separated out from the cases involving adult foreign
nationals. The FBI Crimes Against Children Unit combats
exploitation of children in prostitution in the United
States through the Innocence Lost National Initiative,
which was created in June 2003 in partnership with the
Child Exploitation and Obscenity Section of the
Department of Justice Criminal Division and the National
Center for Missing and Exploited Children. As of
September 2006, 23 task forces or working groups
nationwide have formed through this initiative. Since its
creation, the initiative “has resulted in 241 investigations,
662 arrests, 151 informations/indictments and the recovery and/or identification of more than 300 children” (U.S.
Department of Justice, 2007, p. 13).
December 2008
everyday abuses within a larger system of everyday
exploitation of undocumented workers. Moreover, as
cities and towns throughout the United States enact
local policies that target undocumented migrants, foreign
nationals who work in or are vulnerable to situations of
forced labor are increasingly likely to mistrust not only
law enforcement but also well-intentioned community
organizers. Forced underground, these workers will be
harder to find and to assist than ever before. In this article, I explore the role of trust when building partnerships
within migrant communities—between law enforcement,
migrant leaders, and community-based organizations—
that possibly could prevent forced labor and perhaps
identify trafficked persons. I end the article by emphasizing the critical role communities—of co-ethnics, of
member advocates at migrants’ rights organizations,
and of formerly trafficked persons—can play in finding
individuals in situations of forced labor.
The current environment in which trafficking is
fought in the United States holds several problematic
dynamics: predetermining who is a trafficking victim and
thus worthy of finding and funding; assuming that those
who are determined to be trafficked in the sex industry
embrace their status as sex-trafficking victims; and
increasing distrust and fear within migrant communities
of law enforcement through both federal Immigration
and Customs Enforcement (ICE) raids and local crackdowns on undocumented migrants. The bottom line is, the
United States offers migrants benefits with one hand while
holding a pair of handcuffs in the other.
Fieldwork
This article is part of a larger book project in which
I am interviewing both people who have received a trafficking designation—and a T visa—as well as other
migrants who have experienced exploitative working conditions that may not qualify them as trafficked under the
TVPA. I meet T visa recipients through their social-service
providers.10 I have spoken in person with T visa recipients
in Los Angeles and Orange counties, California; Florida;
Maryland; New York City; Virginia; and Washington, DC.
To date, there are no geographical communities of resettled trafficked persons in the United States. Even those
who were resettled after the largest case in the United
States—the American Samoa case—are not living together
10 See Brennan (2005) for a discussion about the ethical
dilemmas that arise and the safeguards that must be in
place to ensure this particularly vulnerable population’s
safety, privacy, and well-being.
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in any one place.11 When possible, I keep in touch with
some of the T visa recipients whom I initially meet through
social-service agencies, especially with those who live in
communities near me—Maryland, New York, Virginia, and
Washington, DC. We meet in informal settings such as for
meals, and I also accompany them to events at communitybased organizations with which they are involved. In this
way, I try to engage in participant observation in the traditional anthropological sense, by following how people
have been settling into their new communities as they
create and maintain new social networks of friends, neighbors, and coworkers.
Because this project takes the position that forced
labor and servitude are best understood by expanding the
scope of research to include individuals who have not
been designated as trafficked, I also have interviewed
migrants who have experienced a range of workplace
violations in the United States, as well as memberadvocates of migrants’ rights organizations. I also am
interviewing social-service providers, labor organizers,
immigration attorneys, and law enforcement officials in
sites throughout the United States in order to understand the larger political-economic contexts of migrant
labor exploitation.12
Anthropologists’ focus on the particular can help
begin to document just how different each trafficking case
is (Foner, 2003; Glick-Schiller, 2003; MacClancy, 2002).
Contrary to the media’s discussion of trafficked persons
as an undifferentiated population, they come from a variety of source countries, were forced into different forms
of labor and servitude throughout the United States, and
resettled in both small towns and large cities. They speak
different languages and have varying education and work
histories, as well as differences in age, sex, and race or ethnicity. The length of time they were held in servitude
11 The American Samoa case involved Kil Soo Lee (a
Korean national), who was sentenced on January 29, 2004,
for putting people into involuntary servitude in a factory he
owned in the territory of American Samoa. “From 1999
through November 2000,…Lee…used threats, arrest,
deportations, starvation, confinement, and beatings to hold
over 200 Vietnamese and Chinese garment workers in
servitude” (U.S. Department of Justice, 2004a, ¶ 6). The
conviction of Lee and his coconspirators is the largest
human trafficking case prosecuted by the Department of
Justice. I have interviewed some of the resettled T visa
recipients from this case in Northern Virginia and in
Orange County, California.
12 I also have volunteered weekly at a day-laborer site in
Virginia and have attended a variety of community meetings, celebrations, protests, and public hearings held on
issues related to migrants’ rights.
December 2008
varies from weeks to years, and although all of them
experienced psychological coercion, some also underwent
physical brutality. As the victim-witness coordinator for
ICE described,
Agents ask me for profiles of traffickers and their
victims. I tell them there is no one MO of a typical
trafficker, there is no typical victim, and the paths that
lead them here are varied. I’ve never seen anything
like this before.
Scope of Trafficking to the United States
One of the most remarkable aspects of the TVPA
(2000) is that it was passed without reliable data on how
many individuals are in situations of forced labor or
servitude—in a variety of industries—in the United States.
Even the U.S. Department of State’s estimates of how
many individuals are trafficked into the United States
annually have fluctuated widely over the past few years.
The U.S. Department of State’s Office to Monitor and
Combat Trafficking in Persons has revised its own estimate
downward from 50,000 in 2000, to 18,000–20,000 in
2003, to 14,500–17,500 in 2006 (O’Neill Richard, 2000;
U.S. Department of State, 2004, 2005, 2006). In addition,
the report that Congress had requested from the U.S.
Government Accountability Office (GAO; 2006) called
the U.S. government’s estimates of global trafficking questionable because of “methodological weaknesses, gaps in
data, and numerical discrepancies” (p. 2).
In general, little empirical scholarship exists on trafficking to the United States, and notably absent is writing
by those who were themselves in situations of forced
labor.13 Because little is known about either the workings
or the aftereffects of forced labor and servitude, and
because the Bush administration’s focus on trafficking as
sex trafficking has produced much misinformation, there
is a long way to go before the detailed contours and consequences of forced labor or servitude can be mapped. This
issue calls out for more research, both macrolevel and
microlevel. Migration and labor researchers could work
collaboratively across disciplines to produce comparative
research across sites within the United States, particularly
because severely exploited individuals who have qualified
for T visas have shown up both in large cities and small
13 There are a couple of exceptions. See the powerful
account written by former child slave Jean-Robert
Cadet (1998), who was trafficked from Haiti to the
United States. Furthermore, Enslaved: True Stories of
Modern Day Slavery (Sage & Kasten, 2006), contains
chapters written by individuals who were trafficked to
the United States.
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towns (see Brennan, 2005).14 Furthermore, research that
brings together teams of scholars and practitioners (such
as the 2003 Florida State University study and the 2004
report by Free the Slaves and the Human Rights Center
at University of California, Berkeley), as well as research
that focuses on particular states (such as the aforementioned Florida Study or a 2005 report on California by the
Human Rights Center at the University of California,
Berkeley), are ways to maximize both breadth and depth
of research on trafficking in the United States.15
Research on exploitation in the United States—severe
and otherwise—cannot be limited, however, to focusing on
individuals who have been designated as trafficked. These
officially designated individuals are just one part of a bigger story on both forced labor and less severe abuses of
migrant laborers in the United States. Additionally, of
course, various experts on trafficking—policymakers,
social-service providers, attorneys, law enforcement, legal
and other kinds of scholars—ask different sets of questions
and generate different kinds of documentation. This new
knowledge about trafficking has critical consequences
that bring up a number of concerns: (a) How best to build
strategies of prevention of forced labor and servitude—and
labor exploitation in general; (b) how best to find cases of
severe exploitation; (c) how best to provide aftercare for
14 Scholars have joined forces in a number of large migration studies. For example, Newcomers in the Workplace
(Lamphere, Stepick, & Grenier, 1994) reported on one
such collaborative project in the United States that combined macrolevel and microlevel data. Furthermore,
Kasinitz, Mollenkopf, and Waters’s (2004) study on
second-generation New Yorkers combined telephone
surveys of 400 18- to 32-year-olds from the five largest
immigrant groups with both loosely structured in-depth
interviews and the authors’ own ethnographic field projects. Also see Levitt and Waters (2002) for another large
collaborative study on the second generation of immigrants
in New York. For a discussion of a multimethod datagathering technique that applies ethnographic and survey
methods within a single study, see Douglas Massey’s
(2000) article on the uses of an ethnosurvey.
15 The most recent focus on domestic youth in prostitution
has required data to support the funding already dedicated.
Research is underway, such as a study commissioned by
the National Institute for Justice. Furthermore, Shared
Hope International has received funding from the U.S.
Department of Justice to conduct assessments in 10 locations of the identification process of domestic minor sex
trafficking victims and of their access to services and
shelter. Two assessments have been completed: one in
Clearwater, Florida, and one in Las Vegas, Nevada. In
progress are assessments in New Orleans and Baton Rouge,
Louisiana; Dallas, Fort Worth, and San Antonio, Texas;
Independence, Missouri; The Commonwealth of the
Northern Mariana Islands; Buffalo, New York; and Salt
Lake City, Utah.
December 2008
trafficked persons; (d) how best to focus funding; and
(e) how best to develop leadership among formerly trafficked persons, both in advocacy and in research on trafficking to the United States.
It Is All About Sex
Two conflations have come to dominate discussions
of trafficking to the United States. First, as evidenced in
many stories in the media and in the Bush administration’s
position on trafficking, sex trafficking has come to stand
in for trafficking into all forms of labor.16 That is, the
broader category of labor trafficking has been subsumed
by the significant component of sex trafficking. Second,
voluntary sexual exchanges between adults for money
have been described as sex trafficking, thereby linking
voluntary prostitution to sex trafficking. This link, in turn,
has produced a kind of moralizing sex panic within the
trafficking debate. Both of these conflations (subsuming
all trafficking into sex trafficking, and equating all sex
work with sex trafficking) diverts attention away from
serious discussions about, and investigations into, the
relationship between migrants’ undocumented status and
exploitative labor conditions—particularly through the
practice of subcontracting.
Fighting trafficking has recently intensified into what
sociologist Ronald Weitzer (2006) called a moral crusade
against prostitution, the views of which, according to
Weitzer, “have been institutionalized remarkably quickly,
judging from developments in U.S. law and government
policy” (p. 33). 17 As one journalist (Brinkley, 2008)
observed, this administration has what he called an obsession with prostitution. As a result, fighting trafficking in the
16 In then president Bush’s remarks at the signing of the
Trafficking Victims Protection Reauthorization Act of
2005, for example, he placed ending sexual exploitation—of
children and youth in particular—as the centerpiece of
fighting trafficking:
The bill I sign today will help us to continue to investigate and prosecute traffickers and provide new grants to
state and local law enforcement. Yet, we cannot put the
criminals out of business until we also confront the problem of demand. Those who pay for the chance to sexually
abuse children and teenage girls must be held to account.
(U.S. Department of State, Office of the Press Secretary,
2006, ¶ 6)
17 Weitzer (2006) has described moral crusades as
tak(ing) the form of “moral panics” if the targeted evil is
blown out of proportion, if the number of alleged victims
is far higher than what is warranted by the available evidence, and if the claims result in exaggerated anxiety or
alarm among at least a segment of the population. (p. 33)
Also see Kempadoo’s (2005) essay outlining racialized
and gendered moral panics from earlier in the century to
contemporary times.
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United States has been “pervert[ed]” such that “[u]nder
Bush it is largely a campaign to abolish prostitution”
(Brinkley, ¶ 5). Antiprostitution views have shaped not only
who trafficking victims are but also the identification of
whom government will rescue, who is deemed worth rescuing, and which groups will be funded to do the rescuing.18
The current focus on domestic youth in prostitution
did not happen overnight. Rather, ever since the crafting
stages of the TVPA (before its passage in 2000), debates
over prostitution have dominated discussions about trafficking to the United States. Describing the TVPA as
appearing “at first glance” to be an “inexplicable if welcome
break from a series of anti-immigration, antipoor, and
antiprostitution policies in the United States,” Wendy
Chapkis (2005) lamented that the “new law actually serves
as a soft glove covering a still punishing fist” (p. 51). Some
members of Congress did not want any language in the new
bill that would provide immigration relief to those who had
knowingly entered the sex industry.19 From the outset,
they, along with conservative political pundits, antiprostitution scholars, and directors of faith-based organizations in the rescue business, often used language about sex
trafficking to describe all forms of trafficking.
The Bush administration soon made explicit its goal of
eliminating all forms of sex work—not just sex trafficking—
in its fight against trafficking in the United States and
worldwide. Through a December 2002 National Security
Presidential Directive, the U.S. government began
18 Two camps, which have come to be known as antiprostitution and pro-prostitution, are divided over how to conceive of selling sexual services. The antiprostitution
position maintains that all forms of commercial sexual
exchanges are not only exploitative but also coercive and
that therefore the sex industry should be eradicated. In
contrast, I and other sex-worker rights advocates acknowledge that although the sex industry can be exploitative,
including being a site into which individuals are trafficked,
it also is a form of labor that women and men may choose
free from coercion (see Brennan, 2004). As a form of labor,
sex work therefore should be granted greater labor protections to guarantee sex workers greater safety. Both camps
largely agree that when minors are involved in the sex
industry, the work is forced—never voluntary—prostitution.
19 See Wendy Chapkis (2005) on the history of the
Trafficking Victims Protection Act of 2000 (TVPA) with the
image of “violated innocents” (p. 52) at its center; Anthony
DeStefano (2007) on the development of U.S. policy on
trafficking; Saunders’s (2005) essay on the rewriting of
street youth into trafficking victims and the emergence of
CSEC (commercial sexual exploitation of children) as “a
framework encompassing phenomena that are known individually as child prostitution, child pornography, and trafficking in children” (p. 167); and Jo Doezema’s (1998) and
Allison Murray’s (1998) essays on pre-TVPA discussions on
trafficking as sex trafficking in the United States.
December 2008
requiring that any foreign, nongovernmental organization
receiving U.S. government funds earmarked for antitrafficking efforts overseas must sign an antiprostitution
pledge.20 A fact sheet issued by the U.S. Department of
State’s Bureau of Public Affairs (2004), “The Link Between
Prostitution and Sex Trafficking,” enshrined the logic set
out in this presidential directive that voluntary prostitution involving adults leads to sex trafficking of women and
children:
The U.S. Government adopted a strong position
against legalized prostitution in a December 2002
National Security Presidential Directive based on
evidence that prostitution is inherently harmful
and dehumanizing, and fuels trafficking in persons,
a form of modern-day slavery.21 (¶ 1)
With reauthorization of the TVPA in 2005, money
was allocated to further implement an agenda of ending
demand and eliminating prostitution.22 At this juncture,
faith-based and antiprostitution organizations started
20 This directive is not publicly available, however, even
though
it is described in numerous government documents
as providing evidence of the link between prostitution
and trafficking, that legalized or tolerated prostitution
increases demand for sex trafficking, and in order to
combat trafficking the U.S. government has adopted a
strong position against legalized prostitution.
(Women’s Commission for Refugee Women and
Children, 2007, p. 14)
21 The fact sheet continues:
Prostitution and related activities—including pimping
and patronizing or maintaining brothels—fuel the
growth of modern-day slavery by providing a facade
behind which traffickers for sexual exploitation operate.
Where prostitution is legalized or tolerated, there is a
greater demand for human trafficking victims and
nearly always an increase in the number of women
and children trafficked into commercial sex slavery.
(U.S. Department of State Department, Bureau of
Public Affairs, 2004, ¶ 2, ¶ 3)
One scholar, Donna Hughes, whom the Bush administration’s Office to Monitor and Combat Trafficking in
Persons frequently cites to support claims about the links
between voluntary and forced prostitution, took this position one step further. She asserted, “The existence of
prostitution is the only reason sex trafficking exists” (as
cited in Friedlin, 2004, ¶ 14). Also see Hughes’s (2007)
article in the National Review, in which she argued for
more funding for what she called American victims of sex
trafficking.
22 In his book on assessing U.S. anti-trafficking policy,
journalist Anthony DeStefano (2007) has written about
“anti-prostitution zealots” who “single out sex work as a
particular evil” as finding “ready allies in the Bush administration which has advanced legislation and policies to conform to the anti-prostitution agenda” (p. xxi).
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taking the lead in anti-trafficking activities throughout the
United States.
Sensationalistic news stories about trafficking fueled
the Bush administration’s cry to end demand for trafficked persons.23 Stories about the summer 2006 World
Cup events held in Germany illogically suggested that up
to 1 million women and girls would be trafficked into
Germany, where prostitution is legal, to fatten up the
brothels for the influx of soccer fans (see Landler, 2006).
Furthermore, a series on Lifetime (Prupas, 2005) and
a front-page story in the New York Times Magazine
(Landesman, 2004) had provoked much criticism for
shoddy reporting.24 These media stories became all the
more influential not only because of the lack of scholarly
research on forced labor in the United States25 but also,
as Schaffner (2006) has indicated in the title of her book,
due to a lack of research on girls in trouble with the law.
Schaffner has written that although “popular moral panics often focus on girls’ and women’s behavior,…academic studies (as well as policy development and program
funding) focus on the situations and experiences of boys
and men” (p. 1). As a result, “young women in trouble are
victims of an a priori discourse that theorizes their
23 Saunders (2005) has provided an excellent summary
of the template journalists and documentary makers
around the world use to tell trafficking stories that “would
imply through narrative or images that it was the demand
from Western men driving the need for young prostitutes”
(p. 170).
24 One manager of an electronic anti-trafficking listserv
with a name similar to that of the series on the Lifetime
channel explained that she received a flurry of e-mails the
day after the series had aired from parents who feared that
their daughters would be kidnapped and trafficked into
the sex trade. The New York Times Magazine article
(Landesman, 2004) featured a young girl on a bed clad in
a Catholic-schoolgirl’s uniform (plaid skirt and knee
socks). For a critique of the Landesman article, see Young
(2004) and the series of articles by Jack Shafer (2004a,
2004b, 2004c, 2004d, 2004e) on Slate.com. The New
York Times Magazine cover story provoked so much criticism regarding the author’s claims about the girls he
allegedly met and on the data he cited that the “Editors’
Note” in the February 15, 2004, edition of the New York
Times addressed the topic.
25 There is excellent scholarship, however, on exploitative
labor practices in a number of industries in which migrants
labor, such as factories (Bonacich & Appelbaum, 2000;
Louie, 2001; Rosen, 2002; Ross, 1997; Ross, 2004);
domestic work (Chang, 2000; Hondagneu-Sotelo, 2001;
Zarembka, 2002); agriculture (Griffith & Kissam, 1995;
Rothenberg, 1998); poultry processing (Fink, 2003;
Striffler, 2006; Stull & Broadway, 2004); and day labor
(Homeless Persons Representation Project & Casa de
Maryland, 2004; Valenzuela, Theodore, Meléndez, &
Gonzalez, 2006).
December 2008
experiences without detailed empirical scrutiny” (Schaffner,
p. 3). Indeed, as Schaffner has pointed out, the attention
that girls in prostitution receive is out of step with empirical data on arrests: “In 2004 fewer than 1,500 arrests for
prostitution were of girls under the age of eighteen,”
whereas “close to 14,500 arrests of female minors were
for aggravated assault” (p. 3).
Domestic youth in prostitution are assumed to be
easier to find than non–U.S. citizens in situations of
forced labor. Some attorneys at the U.S. Department of
Justice and staff at organizations that are antiprostitution
have described domestic youth in prostitution as the lowhanging fruit in the fight against trafficking in the United
States. Despite the new labeling of pimps as traffickers and
youth as trafficking victims, police interventions can have
perverse results. Police harassment of anyone—of any
age—is commonplace in sites where sex workers have
been known to work (Alliance for a Safe & Diverse DC,
2008). And although some young people have been rescued from abuse in the sex industry, others continue to be
treated and processed as delinquents. By rewriting “street
children, runaways, throwaways, or juvenile delinquents”26 as child victims affected by commercial sexual
exploitation (CSEC), they move from “stigmatized identity, for example, from child prostitute to this protective,
neutral acronym” (Saunders, 2005, p. 168). The CSEC
framework “flounders,” however, “when confronted with
youth who do not consider themselves victims or who do
not view the harms done to them in the same way as the
NGO advocates who intend to help them” (Saunders,
p. 176). Although such youth “are considered change
agents” and “are encouraged to participate in program
design and campaigns to end CSEC,” Saunders has cautioned that “not all youth perspectives are afforded status
as acceptable voices for change.…[Rather, some] nonconforming youth are pathologized and ultimately silenced
by the framework of the CSEC” (p. 168).
Taking the Lead, Taking the Money
Ambassador Mark Lagon, who directs the Office to
Monitor and Combat Trafficking in Human Persons, has
26 Writing about sex work in Canada, Deborah Brock (1998)
has described what she called the confusion in newspaper
accounts referring to young prostitutes as children,
even though the data cited included young people
between the ages of sixteen and twenty-one (and in at
least one case, up to twenty-five).ºDespite this confusion,
by the end of the decade the term “street kid” was uniformly applied to young people who had fled families, foster homes, and an array of institutional settings.º[Thus,]
street kids, including young people working in prostitution, had developed a homogeneous identity. (p. 120)
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denied that federal aid to anti-trafficking groups produces a zero-sum game in which one group of trafficking victims is pitted against another; nonetheless, increased
resources have transformed some nonprofit startups into
national leaders on trafficking.27 In general, two kinds of
organizations focus on domestic youth: (a) organizations
that existed before the passage of the TVPA in 2000 and
whose mission is to support youth who are vulnerable to
a number of abuses and (b) organizations that emerged
after the passage of the TVPA and whose mission is to fight
trafficking—usually sex trafficking. Only in the past few
years—during which time, more U.S. government money
has been allocated to end prostitution in the United
States—has this latter group started programs that focus
on domestic youth in prostitution.28 These advocates for
youth have pointed out the resources available to non–U.S.
citizens under the TVPA and questioned why the same
assistance has not been made available for domestic youth
who are victims of trafficking.29
These youth advocates’ claims on resources for victims
of sex trafficking dovetails with the Bush administration’s
global fight against trafficking as sex trafficking. Saving U.S.
young people who are involved in prostitution becomes a
local enactment of global policies to end prostitution
27 Ambassador Lagon’s response to a question I asked him
after a lecture he gave at Georgetown University on April 9,
2008.
28 For example, Shared Hope International (SHI), a
Christian organization founded by former congresswoman Linda Smith, was awarded one of two Bureau of
Justice Assistance (BJA) congressionally mandated
grants in 2006. Prior to this earmark, SHI had focused
its activities overseas (in India, Fiji, Jamaica, and South
Africa) by opening what the organization calls Homes
of Hope, places where women who flee from brothel
work can live. Under the BJA earmark, SHI received
$987,228 to
assist two existing human trafficking task force
awardees and the ten law enforcement agencies receiving 2006 BJA human trafficking task force awards in
developing protocols that will better enable victims of
trafficking who are U.S. citizens, primarily minors
exploited for commercial sex, to obtain medical, psychological, legal and other services that are appropriate for
victims of human trafficking. (U.S. Department of
Justice, 2007, p. 6).
Prior to receiving this award, SHI had positioned
itself as an expert on domestic prostitution by coauthoring (with ECPAT-USA and the Protection Project)
the 2006 Report From the U.S. Mid-Term Review
on the Commercial Sexual Exploitation of Children in
America.
29 Such claims were made, for example, by advocates for
youth at the First Congressional Briefing on Commercially
Sexually Exploited Youth on March 1, 2004.
December 2008
around the world. Moreover, providing assistance to trafficking victims who are U.S. citizens also sidesteps thorny
political issues surrounding working with migrant communities whose members may be undocumented. Chapkis
(2005) commented that, following the release of the first
set of inflated numbers on trafficking in the United States
and worldwide, the
misleading claim that all these exploited undocumented workers were “sex slaves”—and that “global
trafficking” was all about women and children—
was useful in rallying public support for victims of
migrant abuse in a climate generally hostile to
undocumented workers in America’s factories and
fields. (p. 54)30
Yet, in contrast to startup anti-trafficking organizations, migrants’ rights organizations that were around
before the passage of the TVPA (2000) are well situated
both to find trafficked individuals and to facilitate
migrant activists in taking leadership roles in the fight
for better working conditions at sites where migrants
labor.31 This everyday rights work becomes all the more
urgent in an environment of increased raids, arrests,
and deportations. For example, the Coalition of Immokalee workers, an agricultural workers’ membershipbased advocacy organization in Immokalee, Florida, has
been active since 1993 and the Break the Chain Campaign
has been assisting women who do domestic work in the
Washington, DC, area since 1997. These migrants’ rights
organizations grew out of grassroots community needs,
in collaboration with community partners, not out of
moral or funding imperatives. With the rise of startup
antiprostitution organizations, migrants’ rights groups
and social-service agencies that specialize in working
with foreign exploited workers in industries other than
the sex industry have been replaced at many policy tables
and anti-trafficking conferences by these newer, less
30 Chapkis (2005) has described the opposition set by
distinguishing trafficking victims defined as “vulnerable
women and children forced from the safety of their home
or homelands into gross sexual exploitation,” from “economic migrants who are understood to be men and who
have willfully violated national borders for individual
gain” (p. 52).
31 My research project has paid specific attention to
migrant workers’ rights, opportunities for organizing, and
mobility in the workplace. Ruth Milkman’s (2000) edited
volume Organizing Immigrants, Zlolniski’s (2006) new
ethnography on the Justice for Janitors campaign, and
Gordon’s (2005) book on legal fights for low-wage migrant
workers all examine organizing opportunities within
migrant communities.
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experienced organizations.32 Furthermore, because of
new funding mechanisms, all organizations that resettle trafficked persons have experienced government
funding cuts.33 In short, because of these changes, organizations with experience assisting exploited migrants
increasingly are having difficulty doing their job.
32 Anti-trafficking conferences organized by government
agencies (such as the Office of Refugee Resettlement),
which used to invite a range of community-based organizations involved in combating trafficking, more recently have
invited only domestic-youth-in-prostitution-oriented organizations, as well as faith-based and other antiprostitution
organizations—many of which have little or no experience
in actually delivering social services to trafficked persons
(of any age or nationality). Social workers (who have asked
to remain anonymous) from organizations that are not faith
based and have not explicitly taken an antiprostitution
position are frustrated by their exclusion from these tables
that are shaping future best practices on finding trafficked
persons, knowing whom to look for, and providing social
services.
The trend toward replacement of experienced organizations with newer ones whose mission statements are in line
with the Bush administration’s position on prostitution is
also clear in which organizations were asked to be community partners during the Rescue and Restore public awareness campaign of the U.S. Department of Health and
Human Services. It is unclear whether these campaigns
have reached trafficked persons directly. Service providers
“tend to agree that rather than the Campaign’s broad, general awareness efforts, grassroots awareness campaigns are
the best way to educate trafficked persons” (Women’s
Commission for Refugee Women and Children, 2007,
p. 17). However, “oftentimes the long-standing serviceproviders in the cities where campaigns are initiated were
not contacted to be a partner” (Women’s Commission for
Refugee Women and Children, p. 16).
33 Prior to 2006, the Office of Refugee Resettlement and the
U.S. Department of Health and Human Services awarded
approximately $14.95 million in grants to social-service
organizations to provide services. In addition, the Office for
Victims of Crime at the United States Department of Justice
awarded approximately $10 million to 25 organizations for
providing services such as housing, legal assistance, and case
management. With these grants however, only those who
were certified as trafficking victims could receive assistance
(Women’s Commission for Refugee Women and Children,
2007, p. 24). Since 2006, the latest funding mechanism for
service provision to trafficked persons is a per capita reimbursement system administered through the U.S. Conference
of Catholic Bishops. Social workers have confided that this
pay-per-client system has diminished the capacity of socialservice agencies to have a range of staff and resources at the
ready. Furthermore, as the Women’s Commission for
Refugee Women and Children noted:
funding trends are illustrative of the government’s
anti-prostitution approach. For example, under the
guise of trafficking the Trafficking Victims Protection
Reauthorization of 2005 authorizes $25 million grants
to state and local law enforcement to investigate and
prosecute buyers of commercial sex (p. 14; also see
U.S. Department of Justice, 2006).
December 2008
In the next sections of this article, I explore why
more on-the-ground labor organizing in collaboration
with community organizations that work on behalf of
migrants’ rights is a critical first step to all anti-trafficking
activities.
Finding Trafficked Persons Amid
Everyday Exploitation
Following the central premise around which the
Coalition of Immokalee Workers organizes both its farmworkers’ rights and antislavery campaigns,34 this project
situates trafficking along a continuum of exploitative labor
practices that migrants experience in work sites throughout the United States, underscoring the effects of minimal
labor protections for low-wage (often migrant) workers in
the informal economy and in jobs created through subcontracting.35 Low pay, unsafe work conditions, job insecurity, and no clear channels for employees to bring their
grievances to their employers are part of doing business
at many work sites where migrants labor (Gordon, 2005).
Forced labor and servitude exist today in part because a
range of other exploitative labor conditions exist and are
allowed to proliferate. When exploitation is the norm,
forced labor not only can flourish but also can blend into
a background of abuse. Trafficked persons typically are
restrained not with physical chains but rather through
mental or physical coercion. As a result, trafficked persons,
whether they pick tomatoes or wash dishes or sew clothes
alongside other migrant workers, may appear to be working under the same conditions as their coworkers. What
distinguishes these severely exploited workers from those
who have experienced less severe forms of exploitation is
their belief that they—or their families—will be hurt if
34 See the following book, articles, and editorials in which
the efforts of the Coalition of Immokalee Workers (CIW)
have been profiled: Bowe (2007) and Rondeaux (2002) on
the Ramos slavery case; Asbed (2003) and Nieves (2005) on
the CIW’s campaign against Taco Bell’s use of subcontractors to pay tomato pickers poverty wages; Hundley (2006)
on the CIW’s negotiations with McDonald’s Corporation;
Greenhouse (2007) and Schlosser (2007) on the CIW’s campaign to pressure Burger King to have the chain’s tomato
suppliers pay more to pickers; and Durbin, Sanders, and
Brown (2008) on the Senate Committee on Health,
Education, Labor & Pensions hearing about the working
conditions and poverty wages in Florida’s tomato fields.
35 See Bales and Lize (2005) on labor laws’ lack of reach
to two industries in which migrant labor predominates—
agriculture and domestic work. Lack of labor protections
combined with a dearth of labor inspectors (from the
U.S. Department of Labor) allow rampant labor abuses to
go unchecked (Bales & Lize).
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they leave their trafficker. These practices of intimidation
work. All trafficked persons—regardless of their particular circumstances of exploitation—live in fear and silence.
Because fear and intimidation can characterize work
sites dominated by migrant workers even when labor is not
forced, it is not hard to imagine other factors that may discourage brutally exploited workers from seeking help
from community-based organizations or law enforcement.
First, at any given work site, individuals in forced labor
may work side by side with other workers who have
a marginal ability to leave. Severely exploited individuals
may be reluctant to come forward out of concern that
their coworkers would lose their jobs. Second, if they work
or live (or both) in a community of co-ethnics, along with
their exploiter, they may have a well-founded fear of
reprisals. Third, migrant workers may be reluctant to
cooperate with law enforcement not only out of fear of
reprisals from their exploiters but also out of fear of law
enforcement itself, which may be corrupt or untrustworthy in their home countries. Fourth, the possibility of not
qualifying for a T Visa and thus risking deportation also
discourages exploited migrant workers from seeking
help. Furthermore, some do not want to be found. Peter
Kwong’s (1997) research with Chinese communities in
the United States revealed widespread silence about labor
abuses that occurred within a highly orchestrated, profitable, violent, and underground system of indentured
servitude. These workers, Kwong emphasized, do not
want rescuing; they would rather dedicate themselves to
paying off their debts.
Legal scholar Jennifer Gordon (2005) has written
about a kind of super-exploitation that occurs to most
undocumented workers who, at some point, are cheated
out of their wages in what she called everyday sweatshops.
Workers at work sites that are relatively hidden, such as
in factories or in private homes, or that are geographically
isolated, such as in agriculture, are particularly vulnerable to labor violations that can tip into slavery. Migrant
worker labor organizers emphasize that exploitation is
an inevitable part of immigrant workers’ experiences. An
organizer for PCUN (Pineros y Campesinos Unidos del
Noreste—Northwest Tree Planters and Farmworkers
United) in Woodburn, Oregon, explained that “exploitation happens in small companies and large companies.
There are multiple avenues to rip off workers, especially
because of a lack of English. This is so common, these
things happen all the time, to all the workers.” An organizer for the United Farm Workers (UFW) in Oxnard,
California, also described widespread practices of intimidation in the nearby strawberry fields: “We hear of bad
pay or no pay all the time. But if workers complain, they
December 2008
get fired.” Another UFW organizer explained how farm
contractors warn the workers that they will be fired if
they go to the local UFW office. “So the few who do come
here to the office are literally scared to be here. It’s easier
to meet folks out and about in town and to tell them what
I do, than to get them to come here,” the organizer said.
Many workers fear not just for themselves but also for their
coworkers, the organizer continued, adding that contractors threaten that they will fire an entire crew (approximately 40 people in the case of strawberry picking) if a
worker persists with a complaint.
Another significant obstacle to finding trafficked persons is that they themselves may not distinguish their
experiences of forced labor from that of their migrant
peers, and thus do not self-identify as trafficked persons.
Rather, a kind of normalization of exploitative conditions
exists among migrant workers. An attorney in Miami
described her clients’ experiences in forced labor as part
of “a continuum of violence and exploitation” that they
may have experienced. Even those who have qualified for
T visas do not necessarily consider themselves any more
exploited or abused than some of their coworkers who do
not qualify as trafficked under the TVPA (2000). Often, for
example, T visa recipients initially come to this Miami
attorney’s office not because of workplace issues, but
rather to discuss their immigration status. A social worker
in New York City echoed this observation: “People do not
talk about trafficking ever. They talk about abuse, things
like ‘My boyfriend beat me’.”
Nanci, a Mexican woman who was forced into prostitution and regularly beaten by her boyfriend (who was
also the father of her child), feared that the police would
not protect her from her abuser. Even after she had
escaped with the help of a Mexican taxi driver and his sisters who cared for her, she was unaware that she had suffered a particular kind of exploitation that would qualify
her for a particular kind of visa. Only after she saw a
Spanish-language news broadcast about the arrest of a
man who had forced his wife into sexual slavery did Nanci
realize that she was not alone in her abuse and that there
was a system set up to punish abusers like her boyfriend.
She explained, “I was young and did not know that there
were organizations to help me.”
Labor Organizing, Rights Work
The Coalition of Immokalee Workers (CIW) in
Florida provides a model of how to combat both forced
labor and a range of migrant worker exploitation by engaging in labor organizing and investigative work. CIW members have gone undercover on different farms as farmworkers
to gather information on forced labor and debt-bondage
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cases, which have been federally prosecuted.36 Through
the CIW drop-in center, weekly meetings, radio show,
block parties, and ongoing outreach in places where farmworkers work and live, the organization is well poised to
learn of a range of abuses while working daily to inform
workers of their rights. Moreover, in addition to workermembers conducting undercover investigations on different farms to gather information on cases of forced
labor, CIW van drivers who ferry laborers from farm to
farm also have served as sources of information. These
kinds of ground-up streams of ongoing documentation of
exploitation are essential not only to bringing more cases
of forced labor and servitude to light but also to exposing
daily exploitative practices that migrant workers fear to
speak out against.
Given such conditions, it is little surprise that workers stay quiet in settings where unsafe working conditions, wage violations, or abuse thrive—especially in the
underground economy and in the hidden supply chain that
subcontracting creates. Threatened, intimidated, and frequently isolated, individuals in forced labor or servitude
are difficult to reach even with ongoing investigative
efforts. The creation of 42 task forces in sites throughout
the United States brings together law enforcement and
community partners with the intent of finding more individuals in forced labor.37 However, there is little indication that these task forces are investigating exploitative
labor practices—let alone building partnerships based on
trust in migrant communities.38 Nor is it clear what kind
36 Their investigative work has resulted in the identification of more than 1,000 tomato and orange pickers held in
debt bondage, as well as in the prosecutions by the U.S.
Department of Justice of traffickers who threatened workers if they tried to leave and who pistol-whipped passenger
van service drivers who gave rides to farmworkers leaving
the area (see the following cases on the Coalition of
Immokalee Workers (n.d.) website at http://www.ciwonline.org/slavery.html: U.S. v. Flores, 1997; U.S. v. Cuello,
1999; U.S. v. Tecum, 2001; U.S. v. Lee, 2001; U.S. v.
Ramos, 2004; and U.S. v. Ronald Evans, 2007).
37 These task forces partner local U.S. attorney offices with
state, local, and territorial law enforcement agencies and
with community-based organizations “to create a victim
centered human trafficking task force” (U.S. Department of
Justice, 2007, p. 6).
38 Service providers have criticized the requirement that
those seeking a T visa must assist law enforcement as an
approach undermining a victim-centered approach. A
report by the Women’s Commission for Refugee Women
and Children (2007) has documented service providers’
concerns that trafficked persons “are refusing to report to
law enforcement when they learn what the process entails,”
which “forces trafficked persons to pursue an alternative
form of immigration relief than the T visa and struggle
without the federal benefits” (p. 4).
December 2008
of success law enforcement would have if attempting to
investigate labor issues at work sites where fear reigns—
both fear of the employers-traffickers and fear of law
enforcement and the possibility of deportation. The current
atmosphere of Immigration and Customs Enforcement
raids on workplaces where undocumented migrants labor,
as well as deputization of local police officers in some communities to arrest people for lack of legal documentation,
has resulted in more disincentives to come forward than
ever before (Aizenman, 2008; Brulliard, 2008; Cave, 2008;
Vargas, 2008).39 Furthermore, attrition through enforcement40 has become a mantra among anti-immigrant
activists: Activists who lobby for the deportation of illegal
aliens urge creating an unwelcoming atmosphere as a
way to reduce immigration.
Trust
Formerly trafficked persons may distrust more than
law enforcement: Having difficulty trusting others has
been a central theme in formerly trafficked persons’ narratives. I use the term trust in ways similar to Daniel and
Knudsen (1995), who have written about how refugees
both mistrust and are mistrusted. I ask how someone who
was profoundly exploited can begin to trust others again
and explore how community support plays a role in this
process. The ability to trust others is not easily regained
after others have controlled one’s life. Yet formerly trafficked persons are asked almost immediately after they
escape or are rescued to trust a variety of individuals who
are charged with determining whether they were trafficked. Formerly trafficked persons might find themselves
interviewed by the local police, immigration officials, state
and federal prosecutors, and their own lawyers. As Julie,
an Indonesian woman who was in domestic servitude in
California, explained, “You do not know anyone. It’s hard
to trust other people. After I got out, everyone was asking
39 Since the passage of the Trafficking Victims Protection
Act (2000), there have been cases when those swept up in
raids and rescues (particularly of massage parlors and
brothels) were placed in immigration detention until their
trafficking status could be determined. Those who are
determined to be trafficking victims begin receiving legal
and social services (including housing assistance), whereas
those who are determined to not be trafficked—and are
undocumented—are deported (Lengel, 2006)
40 I heard this phrase repeated by some speakers at a public hearing on immigration convened by the Virginia
Commission on Immigration on May 22, 2008, at George
Mason University in Fairfax County, Virginia. In contrast,
Debra Shutika’s (2008) research with a Pennsylvania community is a model of how community members decide to
work with migrant newcomers.
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me questions. I thought, what if they do the same thing to
me again?”
Formerly trafficked persons may distrust not only
officials but also co-ethnics. As much as social networks
within ethnic enclaves can facilitate finding jobs and housing (Alba & Nee, 2003; Fong, 1994; Waldinger & Lichter,
2003), in the case of formerly trafficked persons who have
been exploited by co-ethnics, these co-ethnics themselves
can be a source of stress. Furthermore, if someone was
exploited by co-ethnics whose friends and family may still
be living in a particular community, she or he may want
to resettle in a different community altogether. As they try
to put their situations of abuse behind them by avoiding
working or living with co-ethnics, some formerly trafficked persons tell stories of their past catching up with
them. Rosa, a Mexican woman who was forced to have sex
in Mexican-run brothels that cater to Mexican clients in
New York City, saw a former customer at her job in a
restaurant. This former customer recognized her and told
one of Rosa’s friends that he had met her at a brothel. Flo,
a woman from Zimbabwe who was in domestic servitude,
ran into a friend of her trafficker in a store. The friend
called the employer-trafficker (a diplomat who was not
prosecuted), who spent the next week telephoning all of
Flo’s friends trying to locate her.
This lack of trust can increase a sense of isolation.
Most formerly trafficked persons describe telling neither
their families back home nor their new friends in the
United States about their experiences in forced labor. In
this sense, they remain alone in their silence about these
abusive experiences. Moreover, most formerly trafficked
persons did not endure their human rights abuses and suffering with others nor are they undergoing their resettlement collectively, as a member of a group that experienced
violence.41 As a result, most of their experiences are individuated and are not typically perceived as part of a common experience among a group of migrants.
Alliances and Action in
Immigrant Communities
Some formerly trafficked persons are meeting one
another for the first time through workshops offered by
social-service agencies and community-based organizations. These meetings, ostensibly designed to offer specific
41 Research with populations that have experienced
violence—such as refugees displaced after war or
genocide—provides some insights for understanding
the resettlement challenges for formerly trafficked persons.
However, it also has limitations because it does not specifically address the experience of being held against one’s
will (Malkki, 1995; Manz, 2002; Theidon, 2006).
December 2008
skills (such as money management, résumé writing, or
computer classes), also have an ancillary result: Formerly
trafficked persons who have never had a chance to meet
other formerly trafficked persons can identify commonalities in their experiences. One Spanish-language series
of empowerment workshops for formerly trafficked persons at a social-service provider in New York City, for
example, provided a forum for formerly trafficked persons to lead discussions. One of the facilitators, Eva, who
was pursuing a degree as a medical assistant at the time
(after earning her GED), was an inspiration to other
women in the group. A fellow group member, upon seeing Eva dressed in her blue scrubs and carrying a book bag,
remarked to me how amazing Eva was and how she, too,
was looking into different degree programs. Yet, most
formerly trafficked persons never get to meet and share
stories or offer advice, support, or inspiration to other
formerly trafficked persons. Meeting others with similar
experiences can be particularly helpful for formerly trafficked persons who, because they have been exploited by
co-ethnics, feel that co-ethnic communities cannot be
sources of comfort, assistance, or belonging.
In addition, workshops and other activities that
include both formerly trafficked persons and other
migrants who have experienced exploitation (but not
enough to qualify for a T visa) are particularly effective in
creating new leaders. For example, the Break the Chain
Campaign in Washington, DC, and the domestic worker
program at Casa de Maryland in Montgomery County,
Maryland, have had great success in nurturing memberadvocates who get the word out in domestic worker communities both about their rights on the job and on a range
of issues related to migrants’ rights. This success has been
due in large part to worker-led grassroots organizing these
organizations have done over time and the trust they
slowly have built in these communities.42
Some formerly trafficked persons have taken leadership roles at local migrant community-based organizations all over the United States. Maria, for example, who
had been trafficked from the Philippines into domestic
servitude in the New York area, has been active for several years in a Filipino community-based organization in
New York City. While attending various activities with
her—such as a health fair, computer classes, and the
organization’s annual dinner-dance—I have seen the level
of respect she enjoys. Maria frequently leads community meetings and speaks publicly not only about the
42 Members of the domestic workers’ unit at Casa de
Maryland have been engaged in a worker-led struggle
for the passage of a domestic workers’ bill of rights in
Montgomery County, Maryland.
Vol. 5, No. 4
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domestic servitude she endured but also about the
exploitation of migrant domestic workers in general. If task
force meetings or other policymaking groups do not
include community partners such as this migrant
community-based organization, it will be all the more
difficult to reach migrants who do not speak English and
rarely come into contact with individuals outside of their
community of co-ethnics.
Concluding Comments
In the name of combating trafficking, antiprostitution politics have profoundly shaped the policy construction of the victims of trafficking: who the victims are,
for whom law enforcement looks, which organizations
receive funding, and which kinds of cases prosecutors
move forward. This prostitution panic has become so
entrenched that it is no longer possible to talk in general
of trafficked persons. Activists and scholars now must
spell out whom they are speaking about, distinguishing
between U.S. citizens and foreign nationals. Simply having to clarify these terms is an illustration in itself of how
much antiprostitution politics have altered the political
understanding of trafficking. For those who have lived
through forced labor (in any industry), placing their
abuse within an equivalent legal framework to those in
noncoerced sexual labor is an outrage.
At the same time, the debate over immigration to the
United States continues. As new policies target undocumented workers, more and more foreign nationals working in or vulnerable to situations of forced labor are likely
to mistrust not only law enforcement but also communitybased organizations. Consequently, these individuals will
be more difficult to find and harder to assist than ever
before. As trafficked persons become harder to find, task
forces intensify their attention on finding domestic youth
in prostitution. Without looking beyond the sex industry
for exploitation, of course, such exploitation will not be
found. De facto U.S. policy is to search for (and, as a
result, find) only one kind of trafficking victim. This
approach epitomizes the U.S. fight against trafficking:
combating sex trafficking while ignoring other, equally
injurious forms of exploitation.
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exaggerated/
Zarembka, J. (2002). America’s dirty work: Migrant maids
and modern-day slavery. In B. Ehrenreich & A. Hochschild (Eds.), Global woman: Nannies, maids, and
sex workers in the new economy (pp. 142–153). New
York: Metropolitan Books.
Zlolniski, C. (2006). Janitors, street vendors, and
activists: The lives of Mexican immigrants in Silicon
Valley. Berkeley: University of California Press.
Vol. 5, No. 4
219
61
220
221
222
223
224
225
226
Immigration Relief for Crime Victims:
The U Visa Manual
March 2010
Prepared by the NYATN Legal Subcommittee:
Suzanne B. Seltzer / Klasko, Rulon, Stock & Seltzer LLP Suzanne Tomatore / City Bar Justice Center Ivy Suriyopas / Asian American Legal Defense and Education Fund Shonnie Ball / Safe Horizon With invaluable assistance from:
Aviania Iliadis
Laura Mathews
© 2010 NY Anti-Trafficking Network. All Rights Reserved. Materials have been abridged from laws, court decisions,
administrative rulings, and other memoranda and should not be considered as legal opinions on specific facts or as a substitute
for legal counsel.
227
Immigration Relief for Crime Victims: The U Visa Manual
The New York Anti-Trafficking Network has provided direct services to over 450 survivors
of human trafficking (NYATN), including most of the major trafficking cases prosecuted in
New York City, and advocated on issues of trafficking in persons since 2002. As the first network
in New York to engage in advocacy on issues relating to trafficked persons in New York, the
NYATN aims to bring together the voices of those who have first-hand experience of the
injustices of human trafficking, who work consistently to meet the needs of trafficked persons,
and who advocate for a more humane and responsive policy towards trafficked persons. Our
membership includes many organizations and individuals advocating on behalf of survivors of
trafficking and other forms of violence.
The NYATN is a group of diverse service providers and advocates in New York dedicated to
ending human trafficking and coordinating resources for trafficked persons. It seeks to establish
dialogue and discuss service options in a range of cases and enable cross-communication
regarding each agency's work with trafficked persons. We provide direct services to trafficked
persons; technical assistance to attorneys, case managers, and other service providers who work
with trafficked persons; train law enforcement and non-governmental organizations on issues
relating to trafficking in persons; outreach in communities to provide resources and information
on trafficking in persons; and engage in policy advocacy on these issues.
NYATN members played a key role in the passage of the New York Anti-Trafficking law
as well as reauthorizations of the federal Trafficking Victims Protection Act. We
continually advocate for legislation that promotes the rights of trafficked persons at the
state and federal levels.
The New York Anti-Trafficking Network is guided by the following principles:
• Recognizing that sustainable change and improved response to trafficked persons
requires increased capacity of network partners working in concert to support trafficked
persons.
• Developing new ways of working together to deliver services, share information, identify
resources, and advocate, is pivotal to an effective response to trafficked persons.
• Educating service providers, law enforcement, governmental entities and the general
public is critical to reaching trafficked persons.
Also see http://nyatn.wordpress.com for additional information, events and resources including
our Identification and Legal Advocacy for Trafficking Survivors manual which can be
downloaded from our website.
For more information contact a NYATN Steering Committee Member or visit us at
http://nyatn.wordpress.com.
Page A-i
© NY Anti-Trafficking Network. All Rights Reserved
DISCLAIMER
These materials are provided solely for informational purposes and are not legal advice. Transmission of these materials is not intended to create, and receipt
does not constitute, an attorney client relationship. This matter should not
be pursued further without contacting an attorney or legal representative.
228
Tabl e of Contents
Part A: Determining If U Visa Is Appropriate For Your Client
Page
I.
What is a U Visa?
A-1
A.
Benefits
A-2
B.
Initial Considerations in Case Evaluation
A-3
1.
Immigration Status
A-3
2.
Liability for Criminal Behavior
A-4
3.
Privilege
A-4
C.
II.
III.
IV.
Legal Assessment
A-6
1.
Screening Clients
A-6
2.
Choosing a Remedy
A-8
Elements of a U Visa:
A-12
A.
Information About Criminal Activity
A-12
B.
‘Direct’ or ‘Indirect’ Victim of the Crime
A-13
C.
Cooperation With Law Enforcement
A-14
D.
Physical or Mental Abuse
A-15
E.
Admissible to the U.S.
A-17
Special Considerations
A-18
A.
U Interim Relief
A-18
B.
Derivative Family Members
A-18
C.
If Your Client was or is in Deportation Proceedings
A-20
After Issuance of U Status
A-21
A.
Employment Authorization
A-21
B.
Travel Overseas
A-22
C.
Adjustment of Status to Permanent Residency
A-22
Page A-ii
© NY Anti-Trafficking Network. All Rights Reserved
DISCLAIMER
These materials are provided solely for informational purposes and are not legal advice. Transmission of these materials is not intended to create, and receipt
does not constitute, an attorney client relationship. This matter should not
be pursued further without contacting an attorney or legal representative.
229
Tabl e of Contents
Part B:
Preparing the U Nonimmigrant Application Package
Page
I.
The Basics of the Application
B-1
II.
Preparing and Drafting the U Visa Application Package
B-2
A.
Completing the Forms
B-2
1.
Form G-28
B-2
2.
Form I-918
B-2
3.
Form I-918, Supplement B
B-4
4.
Form I-918, Supplement A
B-5
5.
Form I-192
B-6
6.
Fee Waiver Request
B-8
7.
Photographs and Filing Fees
B-8
Preparing the Supporting Documentation
B-8
1.
Personal Statement/Affidavit
B-8
2.
Supporting Documents & Exhibits
B-9
3.
Application Checklist
B-11
4.
Finalize & Submit Application
B-12
5.
Follow Up
B-12
B.
Page A-iii
© NY Anti-Trafficking Network. All Rights Reserved
DISCLAIMER
These materials are provided solely for informational purposes and are not legal advice. Transmission of these materials is not intended to create, and receipt
does not constitute, an attorney client relationship. This matter should not
be pursued further without contacting an attorney or legal representative.
230
Introduction
The U visa was established under the Trafficking Victims Protection Act of 2000 (TVPA), 1 and
was subsequently reauthorized in 2003, 2005, and 2008 (Trafficking Victims Protection
Reauthorization Act, or TVPRA). 2 It was created as humanitarian relief for a vulnerable
population, most of which do not have lawful status in the United States. It provides legal status
to victims of certain serious crimes who have suffered substantial physical or mental harm and
can document cooperation with law enforcement. If favorably adjudicated, the U visa grants
permission to remain and work in the U.S. for up to four years, and allows beneficiaries to
eventually apply for permanent resident status.
The U visa is a new and somewhat untested visa classification. After its initial passage, it
languished due to a lack of implementing Federal Regulations. In the absence of regulations,
United States Citizenship & Immigration Services (USCIS) offered “interim relief” to those who
established prima facie eligibility for the U visa classification. As the name suggests, interim
relief is only a temporary fix, offering no long term benefits. For permanent benefits, those
holding interim status were required to re-apply for U status following publication of the interim
final rule seven years later. While the interim final rule went into effect on October 17, 2007, 3 a
majority of the U petitions continued to be held in abeyance pending clarification on filing fees
associated with waiving grounds of inadmissibility for the visa (Form I-192). This was later
clarified by regulations that came into effect on January 12, 2009. 4 As a result, most petitions for
U status first began to be adjudicated in January 2009.
Congress allocated 10,000 U visas to be issued each year, not including spouses and other
derivative family members. 5 Once the annual cap of 10,000 is reached, applicants for U status
will be placed on a waitlist and will be issued deferred action, 6 the same benefit that was offered
under interim relief. As with interim relief, those on the waitlist are eligible to receive
employment authorization and deferred action status for U derivatives. 7
1
2
3
4
5
6
7
Pub. L. No. 106-386, 114 Stat. 1464 (2000). The U visa was incorporated in the section of the
TVPA known as the Battered Immigrant Women Protection Act of 2000, Pub. L. No. 106-386,
114 Stat. 1518 (2000).
Pub. L. No. 108–193, 117 Stat. 2875 (2003), Pub. L. No. 109-164, 119 Stat. 3558 (2006), Pub. L.
No. 110-457, 122 Stat. 5044 (2008); Immigration & Nationality Act (INA) § 101(a)(15)(U).
8 CFR § 214.14; USCIS Interim Final Rule: New Classification for Victims of Criminal Activity;
Eligibility for ‘U’ Nonimmigrant Status, 72 Fed. Reg. 53014 (Sept. 17, 2007). Effective October
17, 1007.
8 CFR § 103.7(c)5(iii); USCIS Interim Final Rule: Adjustment of Status to Lawful Permanent
Resident for Aliens in T or U Nonimmigrant Status, 73 Fed. Reg. 75540 (Dec. 12, 2008).
Effective January 12, 2009. Pursuant to 8 CFR 103.7(c)(5) fee waiver requests will now be
accepted by applicants for T or U nonimmigrant status.
8 CFR § 214.14(d)(1).
8 CFR § 214.14(d)(2).
Id.
Page A-iv
© NY Anti-Trafficking Network. All Rights Reserved
DISCLAIMER
These materials are provided solely for informational purposes and are not legal advice. Transmission of these materials is not intended to create, and receipt
does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
231
Immigration Relief for Crime Victims: The U Visa Manual
Like the T visa manual, 8 this manual aims to provide guidance to lawyers on issues that arise in
the context of representing U visa applicants. It is designed for practitioners who are familiar
with basic immigration terms and legal concepts. The manual is not meant to be an exhaustive
source of the law; it is not meant to provide instruction on every aspect of representation, nor is it
meant to take the place of direct legal advice, advocacy, or a practitioner’s own research and
evaluation of the case. 9 It also does not address in detail other avenues of immigration relief that
may be available to crime victims. Practitioners should always consider other avenues for status
or relief, such as asylum, a petition under the Violence Against Women Act (VAWA), the T visa,
petitions for Special Immigrant Juvenile Status (SIJS), Cancellation of Removal, and other
family- and employment-based petitions. We encourage practitioners to be creative in exploring
other possibilities for immigration relief on behalf of victims.
8
9
“Identification and Legal Advocacy for Trafficking Survivors” (3rd Ed., Jan 2009) by NY AntiTrafficking Network Legal Subcommittee. This manual can be found online at http://www.nyanti-trafficking.com/assets/docs/t_visa_manual_3rd_edition_2009.pdf.
An excellent source of relevant legal documents can be found at www.asistaonline.org. Also,
materials can be found on the probono.net/ny/family website (registration is free) in the library
under immigration, which is available at: http://www.probono.net/ny/family/library/folder.21203Immigration.
Page A-v
© NY Anti-Trafficking Network. All Rights Reserved
DISCLAIMER
These materials are provided solely for informational purposes and are not legal advice. Transmission of these materials is not intended to create, and receipt
does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
232
Part A: Determining if U Visa Is Appropriate
for Your Client
I.
What is a U Visa?
The U visa is a nonimmigrant status that, according to the statute, 10 may be available when:
(I)
the alien has suffered substantial physical or mental abuse as a result of
having been a victim of the following qualifying crimes or substantially
similar criminal activity: 11
„
„
„
„
„
„
„
„
„
„
„
„
„
„
„
„
„
„
„
„
„
„
„
„
(II)
10
11
Rape
Torture
Trafficking
Incest
Domestic violence
Sexual assault
Abusive sexual contact
Prostitution
Sexual exploitation
Female genital mutilation
Being held hostage
Peonage
Involuntary servitude
Slave trade
Kidnapping, abduction
Unlawful criminal restraint
False imprisonment
Blackmail, extortion
Murder, manslaughter
Felonious assault
Witness tampering
Obstruction of justice
Perjury
Attempt, conspiracy, or solicitation to commit any of the above
the alien (or in the case of an alien child under the age of 16, the parent,
guardian, or next friend of the alien) possesses information concerning the
criminal activity;
INA § 101(a)(15)(U)(i); 8 USC § 1101(a)(15)(U)(i).
8 USC § 1101(a)(15)(U)(iii); 8 CFR § 214.14(a)(9).
233
(III)
the alien (or in the case of an alien child under the age of 16, the parent,
guardian or next friend of the alien) has been helpful, is being helpful, or is
likely to be helpful to a Federal, State, or local law enforcement official, to a
Federal, State, or local prosecutor, to a Federal or State judge, to USCIS, or
to other Federal, State, or local authorities investigating or prosecuting the
criminal activity; and
(IV)
the criminal activity violated the laws of the U.S. or occurred in the U.S.
(including in Indian country and military institutions) or the territories and
possessions of the U.S.
In general, the U visa is meant to protect a vulnerable population from being targeted for crimes,
by providing those who cooperate with law enforcement the ability to remain lawfully in the U.S.
and eventually gain permanent residency.
A.
Benefits
„
„
„
U visa nonimmigrant legal status for four years, which may, under certain
circumstances, be extended. 12
Opportunity to seek permanent residency (“green card”) after three years in U
status. 13
Employment authorization for the principal applicant. 14
o
o
12
13
14
15
Living in the U.S.
ƒ
For the principal applicant applying in the U.S., USCIS will
automatically issue an initial Employment Authorization
Document (EAD) to applicants granted U-1 nonimmigrant
status.
ƒ
Applicants with a pending, bona fide application for U status
may also be eligible for an EAD. However, as of the drafting of
this manual, USCIS had not issued a bona fide standard. 15
Living Outside the U.S.
8 CFR § 214.14(g).
INA § 245(m), 8 USC § 1255(m).
8 CFR § 214.14(c)(7).
William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA 08),
P.L. 110-457, 122 Stat. 5044-5091, (2008).
234
ƒ
„
Principal applicants who apply from outside the U.S. will not be
issued an EAD until the applicant has been granted U status.
After admission, the applicant may receive an initial EAD upon
request.
Derivative status for family members. 16
o
If petitioner is under 21, then spouse, children, parents (only if petitioner
is unmarried) and siblings under 18 at the time of filing I-918 (not time
of interim filing) can apply for derivative status.
o
If petitioner is over 21, then spouse and children can apply for derivative
status.
o
Derivatives may apply for EAD either as part of the initial submission, or
after receiving U status.
„
Eligibility for certain public benefits.
„
Travel outside the U.S., but note potential risks. 17
B.
Initial Considerations in Case Evaluation
1.
Immigration Status
Applicants for U status may have problems with the validity of their immigration status. The
most common issues include the following:
„
„
„
„
16
17
18
Entering the U.S. without passing through a border post or port of entry (known
as “entry without inspection” or “EWI”);
Entering on a tourist visa (B1/B2) and engaging in unauthorized employment.
This is considered a violation of that particular status;
Entering on a tourist visa (B1/B2) but overstaying the authorized period of stay
on the I-94 Departure Record. Once an individual overstays the I-94 card by
even one day, they are considered “unlawfully present.” There are serious and
permanent consequences associated with unlawful presence; 18
Entering on a fraudulent passport or using another person’s passport. This
constitutes visa fraud, and does not confer a valid nonimmigrant status.
8 CFR § 214.14(f).
See Section IV, “After Issuance of U Status,” Part B “Travel Overseas.”
INA § 212(a)(9)(B)(i).
235
However, if the individual did not overstay the I-94 (even though fraudulently
issued), s/he is not considered to be unlawfully present.
The validity of a U applicant’s status is important because if an applicant is not in valid status,
and s/he is being brought to the attention of USCIS or Immigration & Customs Enforcement
(ICE), the applicant could be issued a Notice to Appear (NTA) at Immigration Court, and
removal (deportation) proceedings may be commenced.
Another important consideration with violations of status or unlawful presence is that it may
interfere not only with the U application, but also with the applicant’s eligibility for future
immigrant benefits (such as obtaining legal permanent resident status – the “green card”). A
waiver of “inadmissibility” may remedy these status violations and are granted at the discretion of
the USCIS. To request a waiver of inadmissibility on the above grounds, Form I-192 and the
accompanying fee (or request for fee waiver) should be filed concurrently with the I-918. 19
2.
Liability for Criminal Behavior
All criminal acts, even minor ones, should be disclosed to the attorney and the applicant should
provide certificates of disposition for each act and/or a certificate of good conduct. If the
applicant is not sure of this history, a good place to start is the Federal Bureau of Investigations
(FBI), which will provide a copy of the applicant’s ‘rap sheet’ for informational purposes.
Complete information on requesting an FBI Identification Record can be found at
http://www.fbi.gov/hq/cjisd/fprequest.htm.
Attorneys and advocates should be wary of any prior arrests or convictions that may come back to
haunt the client. If the applicant was arrested, it is critical to engage in aggressive advocacy that
avoids a conviction, even if it involves only a low-level offense. As noted above, a criminal
conviction may impact the client’s ability to stay in the U.S. and/or obtain legal permanent
residency. ICE and USCIS will take into consideration if the conviction was caused by, or
incident to, the victimization. However, it is better to advocate for an appropriate disposition.
3.
Privilege 20
The attorney-client privilege is an established principle of law that protects communications
between attorneys and their clients, when such communication is for the purpose of requesting or
receiving legal advice. This privilege encourages openness and honesty between attorneys and
their clients by prohibiting attorneys from revealing (and being forced to reveal) attorney/client
communications. The privilege belongs to the client, meaning that only the client may waive the
privilege to give consent to reveal the protected communications. However, certain situations
19
20
This is outlined in more detail in Part B.
We are grateful to Dechert LLP for researching and evaluating this important, yet complex issue.
This section provides only a cursory review of the memoranda provided to us by Dechert LLP.
These memoranda are available for review at www.ny-anti-trafficking.com, under the publications
link.
236
may “break” the privilege, even if the client did not have the intention to reveal the
communications. This includes the presence of a third party in attorney-client communication.
In the U visa application context, the presence of a social worker in the interview process or
throughout the representation may break privilege. Once privilege is broken, the communication
may no longer be kept private, and defense attorneys or prosecutors may be able to access the
client’s statements. Limited exceptions to this rule include where the social worker, or other
assistant, is acting solely in the context of an interpreter or translator, or where the social worker
is there solely to facilitate the provision of legal services. 21
Generally speaking, communications between a lawyer and her client made in the presence of a
known third party are not privileged. The theory is that such communications could not have
been intended to remain confidential. 22 Nevertheless, in circumstances where a client can
demonstrate that she had a reasonable expectation of confidentiality and the communications
were “made to [or in the presence of] agents of an attorney ... hired to assist in the rendition of
legal services,” the attorney-client privilege is not broken. 23 This holds even where such
communications were made entirely outside the presence of the attorney so long as the
communications were made to the third party in order to facilitate the attorney’s representation of
her client. 24 The federal courts have applied the privilege to diverse professionals working with
attorneys, including “a psychiatrist assisting a lawyer in forming a defense.” 25 However, it is
important to remember that this jurisprudence protects communications made to an attorney or on
behalf of the services provided by an attorney; it does not extend beyond the scope of
representation provided by an attorney.
A separate question is whether there is a privilege protecting communications between a social
worker and a client made pursuant to providing other services, such as counseling, assisting with
housing, medical assistance, et cetera. This is not as well-established in the law. In very broad
terms, the issue seems to turn on the professional level of the social worker, i.e. licensure or
certification, the expectations of the client as to confidentiality of the communications, and the
purpose of the communications. For example, the Supreme Court recognizes “the ability to
21
22
23
24
25
See e.g., United States ex rel. Edney v. Smith, 425 F. Supp. 1038, 1046 (E.D.N.Y. 1976).
Although such “exceptions” may not break the privilege, it is extremely important that where a
social worker is playing such a role, his or her function is fully documented as limited to that role.
Should the social worker’s role go beyond translating or facilitating the provision of legal services,
it may blur the line, making the privilege easier to pierce. Moreover, such exceptions are not
absolute, and both the attorney and social worker should ensure that any communications are
made in a setting most conducive to protecting the communications.
See Weatherford v. Bursey, 429 U.S. 545, 554 (1977).
United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. N.Y. 1989), cert. denied, 502 U.S. 810
(1991).
Note that this privilege applies to both the testimony and records of the third party. See e.g.,
Federal Trade Commission v. TRW, Inc., 628 F.2d 207, 212 (D.C. Cir. 1980)(citing United States
v. Kovel, 296 F.2d 918 (2d Cir. N.Y. 1961)) (Finding the reports prepared by a third party
privileged where report was prepared at request of attorney and “the purpose of the report was to
put in usable form information obtained from the client”).
Occidental Chemical Corp. v. OHM Remediation Services Corp., 175 F.R.D. 431, 437 (W.D.N.Y.
1997).
237
communicate freely without the fear of public discourse [as] the key to successful treatment” in
psychotherapy and clinical social workers. 26 However, it is not clear how far this privilege
extends. Moreover, in state courts, privilege is adjudicated under state law, and each state has
Therefore, social workers and social services
different rules regarding this matter. 27
organizations need to take every precaution to protect clients’ communications, and/or to advise
clients that such communications may not be confidential. 28
C.
Legal Assessment
1.
Screening Clients
The following are some suggested questions that may facilitate initial screening and
evaluation of potential U applicants. These questions were drafted to elicit information
relevant to the regulatory criteria, but are not exhaustive. Practitioners should be mindful
of their client’s specific circumstances, and to direct their questions accordingly.
i.
Background Immigration Information
When did you enter the U.S.? List every place, date, and type of entry.
„
For each time that you entered the U.S., did you enter with a valid
passport and visa? Check passport and I-94 card.
„
If you did not enter with a valid passport and visa, did you have any
contact with an official, immigration, or other agent, during the entry?
„
„
„
26
27
28
•
Were you detained?
•
Were your fingerprints or photograph taken?
•
Did you claim to be someone else?
•
Did you claim to be a U.S. Citizen?
Have you filed any immigration papers? If so, do you have a copy of
those papers?
Have you ever been ordered removed, excluded, or deported from the
U.S.?
Jaffee v. Redmond, 518 U.S. 1, 6, 15 (1996).
As of this writing, Dechert LLP has researched social worker privilege in New York, New Jersey,
Florida, Texas, and Arizona. This research is available at www.anti-nyc-trafficking.com under the
link to publications.
Legal Aid Foundation of Los Angeles (LAFLA) has also done substantial research on the social
worker privilege issue. Information can be found on their website at www.lafla.org.
238
ii. Information on Crime
„
Do you know the perpetrator? If so, how?
„
Name of perpetrator/abuser, if known;
„
Information on where perpetrator/abuser is residing, if known;
„
Provide details of the crime (when, where, what occurred);
iii. Cooperation with Certifying Agency 29
„
Have you spoken to law enforcement about this crime?
„
Did you assist law enforcement in their investigation?
„
Do you have contact information/address for the law enforcement
official with whom you spoke?
iv. Harm Suffered
„
„
„
„
Are you experiencing any lasting physical or mental effects as a result of
the crime? Do you have any medical conditions that have worsened
since the crime?
Have you spoken to a therapist, case manager, or counselor about the
harm you have suffered?
Are there any other effects that you have suffered as a result of the crime
that you can describe? 30
Can you provide medical reports?
v. Inadmissibility and Good Moral Character
„
29
30
Have you ever been arrested, including any time you were detained by
immigration?
Under 8 CFR § 214.14(a)(2), the term “Certifying Agency” is defined broadly to include any
authority “that has responsibility for the investigation or prosecution of a qualifying crime or
criminal activity.” Common examples include, but are not limited to local, State and Federal law
enforcement, prosecutors, judges, child protective services, the Equal Employment Opportunity
Commission, and the Department of Labor.
Many types of evidence may be available to support the harm suffered by a victim of a crime.
Evidence could include official medical reports, formal statements by a case manager or counselor
attesting to the harm suffered, and letters of support by people close to the victim, including
neighbors, family, and employers.
239
„
Detailed information about circumstances of each arrest/conviction;
„
Have you ever used drugs?
„
Have you ever helped someone cross the border without a visa?
„
Have you ever pretended to be a U.S. citizen?
„
Do you have a disease, such as tuberculosis, which could be considered a
public health concern?
Choosing a Remedy 31
2.
Many victims of crime have a history of abuse that may or may not be related to the most
recent crime committed against them. Based on this history, the applicant may have
different options for types of relief under U.S. immigration law. During the initial
screening, it is important to pay attention to any red flags in the story, and to ask
questions beyond the specific crime the client is reporting. Asking basic questions about
a person’s family history, life in their home country, arrival into the U.S., and conditions
under which they have lived in the U.S. will provide a more complete picture of the
individual’s options for relief.
A chart outlining some options to consider is at A11, and may include the following:
i.
Violence Against Women Act (VAWA) 32
The Violence Against Women Act (VAWA) was passed to improve criminal justice and
community-based responses to domestic violence, dating violence, sexual assault, and
stalking in the U.S. Under VAWA, victims of domestic abuse may apply for permanent
resident status. A petition under VAWA basically requires the following:
„
„
„
31
32
The perpetrator/abuser is a U.S. Citizen or Lawful Permanent Resident;
The perpetrator/abuser is a spouse, parent, or, in the case of the elderly, a U.S.
Citizen child;
The abuse committed amounted to battery or extreme cruelty.
A chart, “Basic Comparison of U Visa, VAWA Self-petitions, T Visas, and Asylum,” is
included with these materials and outlines some options to consider when choosing a remedy
for your client.
Pub.L. No. 103-322, 108 Stat. 1796 (Sept. 13, 1994); see also “U Visa Regulations Fact Sheet,”
Legal Momentum: Advancing Women’s Rights, available at
http://www.legalmomentum.org/news-room/press-releases/u-visa-regulations-released.html.
240
A VAWA petition may be more advantageous because:
„
„
„
U visa applicants have a 3-year continuous presence requirement before they can
apply for lawful permanent residency.
U visa recipients can only obtain lawful permanent residency if they can prove
humanitarian need, family unity, or public interest. 33 VAWA self-petitioners can
obtain lawful permanent residency once a visa becomes available.
U visa applicants have to rely on the I-918 Supplement B certification from law
enforcement. VAWA applicants may self-petition and prove their entitlement to
the remedy without any mandatory cooperation from law enforcement.
ii. Asylum
Asylum is a form of protection that may be an option for those who have suffered, or are
likely to suffer, persecution in their home country. Often, victims of violence in their
home country will have experiences of violence during their travel to the U.S., or
following their arrival in the U.S. A client may initially present as a potential U-visa
holder, but careful questioning regarding his/her history may also demonstrate eligibility
for asylum.
The rules surrounding an application for asylum can be complicated and require a great
deal of documentation. To be eligible for asylum, a person must be in the U.S. and meet
the definition of a refugee. 34 Under this definition, a person must have been persecuted,
or fear the possibility of persecution if returned to their home country, on account of their
race, religion, nationality, membership in a particular social group, or political opinion.
General points regarding eligibility for asylum:
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33
34
35
36
An application must be submitted within one year of arrival in the U.S., or within
one year of expiry of lawful status. If an application is not timely submitted, an
applicant must show “either the existence of changed circumstances which
materially affect the applicant’s eligibility for asylum or extraordinary
circumstances relating to the delay in filing the application….” 35 (emphasis
added).
The persecution suffered by the applicant may be at the hands of the government,
or an entity that the government is unable or unwilling to control. 36
8 CFR § 245.24(b)(6).
A refugee is defined as “any person who is outside any country of such person’s nationality or, in
the case of a person having no nationality, is outside any country in which such person last
habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail
himself or herself of the protection of, that country because of persecution or a well-founded fear
of persecution on account of race, religion, nationality, membership in a particular social group, or
political opinion.” INA § 101(a)(42)(A), 8 USCS § 1101(a)(42)(A).
INA § 208(a)(2)(B), (D).
Nabulwala v. Gonzales, 481 F.3d 1115 (8th Cir. 2007).
241
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An applicant may be eligible for asylum if persecuted because of the persecutor’s
erroneous belief that they held an unpopular political opinion, religious view, or
were members of a particular social group. While substantial case law supports
the idea of persecution based on an “imputed” ground, it is important to
document these cases thoroughly and be creative in the argument in favor of
granting their application.
An asylum petition may be more advantageous because:
ƒ
The asylum application, while burdensome, may be preferred because it does
not require applicant cooperation with, or certification by, law enforcement.
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An asylee is able to apply for lawful permanent residency one year after their
asylee status was approved, while a U visa holder must wait three years.
iii. T Visa 37
The T visa was initially created by the Trafficking Victims Protection Act (TVPA) of
2000 38 and further defined in subsequent reauthorizations. Under the TVPA, a person is
eligible to apply for a T visa if s/he is a survivor of a severe form of trafficking. In many
instances, a trafficking survivor may also have been a victim of another crime.
Depending on the severity of the trafficking situation and the identity of the trafficker, the
survivor may be more willing to report another crime to law enforcement, and apply for
the U visa in lieu of the T visa.
However, it is not necessary to choose between filing for a T visa and filing for a U visa;
it may even make sense to file both types of petitions so that USCIS may review the facts
under both standards. If it turns out that the applicant is eligible for both the U visa and
the T visa, USCIS will probably ask that one petition be withdrawn since a foreign
national can only hold one nonimmigrant status at a time. In making this type of
decision, practitioners may want to consider the benefits available under each visa
category.
Important considerations in deciding between the T visa and the U visa are:
37
38
ƒ
Those in T status are eligible for more public benefits than those in U status.
Applicants approved for T status receive a Certification Letter from the
Department of Health and Human Services, given them access to benefits.
ƒ
Those in T status are eligible to adjust status to permanent residence before three
years if they document that the investigation and prosecution against the
trafficker is complete.
ƒ
A T visa holder must only be “willing to cooperate” with a law enforcement
investigation or prosecution against the trafficker.
T Visa Manual, supra n. 8.
Pub. L. No. 106-386 Division A, 114 Stat. 1464 (2000).
242
Basic Comparison of U Visa, VAWA Self-petitions, T Visas, and Asylum
The purpose of this chart is to provide a general comparison of the possible options for
humanitarian forms of immigration relief for crime victims. It is not meant to be exhaustive, or to
replace a complete of the case specifics. Note that an applicant may apply for more than one
relief at a time, but can only hold one status at a time. Please refer to the actual law and
regulations when making a determination for your client.
U Visa
VAWA
Self-petition
Battering or
extreme cruelty;
Qualifying Criminal
Activity
Must be a victim or
the attempted victim
of one of the
enumerated crimes.
Does crime have to
have happened inside
the U.S.?
Yes, or U.S.
territories and
possessions
Yes, or U.S.
territories and
possessions
Cooperation with law
enforcement
required?
Yes
No
Familial relationship
to abuser?
Timeframe to apply
No
Yes
Within 180 days of
the certification
Extreme hardship
upon removal?
Derivatives which
can be included?
No
No limit, unless
qualifying
relationship is
terminated, abuser
deported, or
children aging
out.
No
May include spouse
children, parents, and
siblings depending on
the principal’s age
when the
victimization
occurred.
Children under
21.
Point at which
application for
permanent residency,
aka a green card?
Can apply after 3
years in U status.
Immediately if
married to or
formerly married
to a USC.
243
T Visa
Asylum
Labor or sex
trafficking
Persecution or wellfounded fear of
persecution based upon
one of five factors.
Yes. Must be
physical present
on account of
trafficking
Must
demonstrate
reasonable
efforts to
cooperate
No
No, events occurred in
country of nationality or
last country of residence.
Must
demonstrate
physically
present in U.S.
on account of
trafficking.
Within one year of
expiry of lawful status,
unless country
conditions changed or
extraordinary
circumstances can be
documented..
No
Yes
May include
spouse children,
parents, and
siblings
depending on
the principal’s
age when the
victimization
occurred.
After T visa if
investigation
complete.
Otherwise, after
3 years in T
visa status.
No
No
Spouses and children
under 21.
Can apply after one year
in asylee status
II.
Elements of a U Visa
In order to qualify for the U visa, a person must establish the following:
A.
Information about Criminal Activity
The applicant must possess information about the criminal activity of which s/he has
been a direct or indirect victim. It must be established that the criminal activity either
violated the laws of the U.S. or occurred within the U.S., its territories, or possessions.
The U visa is available to victims who have suffered from any of the following qualifying
crimes or substantially similar criminal activity:39
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Rape
Torture
Trafficking
Incest
Domestic violence
Sexual assault
Abusive sexual contact
Prostitution
Sexual exploitation
Female genital mutilation
Being held hostage
Peonage
Involuntary servitude
Slave trade
Kidnapping, abduction
Unlawful criminal restraint
False imprisonment
Blackmail, extortion
Murder, manslaughter
Felonious assault
Witness tampering
Obstruction of justice
Perjury
Attempt, conspiracy, or solicitation to commit any of the above
It is important to note that this list is not exhaustive, and practitioners should advocate if
their client is a victim of ‘substantially similar’ crimes, particularly those that target
vulnerable immigrant populations. 40
39
40
8 USC § 1101(a)(15)(U)(iii); 8 CFR § 214.14(a)(9).
USCIS Fact Sheet, “USCIS Publishes Rule for Nonimmigrant Victims of Criminal Activity,”
dated Sep. 7, 2007, available at http://www.uscis.gov/files/pressrelease/U-VisaFS_05Sep07.pdf.
244
B.
‘Direct’ or ‘Indirect’ Victim of the Crime
Both direct and indirect victims are eligible to apply for U status. A direct victim is a
person who has suffered direct harm or who is directly or proximately harmed as a result
of the commission of a criminal activity.
USCIS also has the discretion to consider bystanders as direct victims, if they suffered
unusually severe harm as a result of having witnessed the criminal activity. The example
given in the comments to the interim final rule was of a woman who miscarries after
witnessing such activity. 41 Another example of a bystander-victim is a witness who
suffers a heart attack after witnessing a murder.
An indirect victim may include any of the following:
„
Qualifying family members of murder victims, manslaughter victims, and
victims who are incapacitated or incompetent; 42
„
Practice Pointer: During a Vermont Service Center (VSC) USCIS
Stakeholder’s Meeting, VSC stated that parents of sexually abused U.S.
Citizen children qualify as indirect victims of someone who is
incompetent/incapacitated. VSC recommends completing the I-918
listing the parent as the victim. 43 In these situations, it is not clear if the
substantial harm must only be to the U.S. Citizen child, or if it must also
be to the parent. The affidavit should address all the harm suffered by
the family.
„
41
42
43
Example: In May 2009, Ms. OH's five-year old U.S. Citizen
son, J, told her that he was molested by a neighbor, Mr. ID. Ms.
OH immediately took J to the hospital and the police were
called. Based on Ms. OH’s statements, Mr. ID was arrested and
charged with predatory sexual assault and endangering the
welfare of a child. Mr. ID’s spouse was angry with Ms. OH,
and continued to harass her in the building. Ms. OH and J had to
move to another neighborhood, where J is seeing a counselor at
his new school. Ms. OH is eligible to petition for a U visa based
on her minor U.S. Citizen son's victimization of a qualifying
crime, her cooperation with the police and the District Attorney's
office, and the substantial harm her son suffered as a result of the
crime.
USCIS Interim Final Rule, 72 Fed. Reg. 53014 (2007), supra n. 3.
8 CFR § 214.14(a)(14)(i).
AILA VSC Liaison Committee’s Minutes of VSC Stakeholders Meeting (August 20, 2009)
available at www.aila.org. AILA InfoNet Doc. No. 09090265. (Posted 9/2/09).
245
„
“Next friend” 44 a person who appears in a lawsuit to act for the benefit of an
immigrant victim:
„
„
who is incapacitated, incompetent, or under the age of 16, and
who has suffered substantial physical or mental abuse as a result of being
a victim of qualifying criminal activity.
Note: The next friend is not a party to the legal proceeding and is not appointed
as a guardian. 45
„
An indirect victim can also qualify for a U visa as a victim of witness tampering,
obstruction of justice, or perjury, if the perpetrator committed the offense:
„
„
C.
to avoid or frustrate efforts to investigate, arrest, prosecute, or otherwise
bring to justice the perpetrator for other criminal activity committed
against the direct or indirect victim, or
to further the perpetrator’s abuse, exploitation of, or undue control over
the U Visa applicant through manipulation of the legal system. 46
Cooperation with Law Enforcement
Eligibility for U nonimmigrant status requires certification that the applicant was helpful,
is being helpful, or is likely to be helpful in the criminal investigation or prosecution of
the crime. 47 The applicant must obtain a “U Nonimmigrant Status Certification,” on
Form I-918, Supplement B, from a federal, state or local law enforcement official, or a
judge investigating or prosecuting the criminal activity. 48
Although not required by the statute, federal regulations require the applicant to continue
to cooperate in the investigation or prosecution even after receipt of U status. The
applicant must not refuse or fail to provide information and assistance “reasonably
49
requested.”
Under the interim final rule, authorization to issue certification is limited to “the head of
the certifying agency, or any person(s) in a supervisory role who has been specifically
44
45
46
47
48
49
8 CFR § 214.14(a)(7).
Id.
8 CFR § 214.14(a)(14)(ii)(B). Petitions have been filed on the basis of perjury for an applicant
who was the victim of immigration fraud. The perpetrator knowingly filed incorrect immigration
forms for thousands of people, and applicant was one of the first people to come forward and
report the perpetrator to the authorities.
8 USC § 1101 (a)(15)(U)(i)(III).
8 CFR § 214.14(c)(2)(i); Form I-918, Supplement B is discussed in Part B.
8 CFR § 214.14(b)(3).
246
designated by the head of the certifying agency.” 50 Examples of agencies and certifying
officials at those agencies include the following:
ƒ
Investigating agency;
ƒ
Local police department
ƒ
U.S. Marshal
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Victim witness coordinator, Federal Bureau of Investigation
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Victim witness coordinator, Immigration and Customs Enforcement
ƒ
Federal or state Department of Labor
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Equal Employment Opportunity Commission
ƒ
Federal Administration for Children and Families or state or local equivalent;
ƒ
Prosecutor;
ƒ
•
District Attorney
•
State Attorney General
•
Victim witness coordinator, U.S. Attorney
Federal, state, or local judge.
Some agencies may not have a designated signatory. In fact, some agencies may lack
understanding about U visas and the role of certification. In such a situation, it is
important for advocates to collaborate with the agency to establish a protocol and
procedures to certify cooperating victims.
ƒ
D.
Practice Pointer: The applicant may cooperate with several agencies in the
investigation and prosecution of a qualifying crime. Talk to the official with whom
the applicant has had the most contact, and advocate to that official’s agency that
certification would most properly come from them. If the agency does not have a
designated signatory or is unaware of U visas, you should be prepared to educate
them on the law, the needs of the victim as a cooperating witness, and the importance
of certification.
Substantial Physical or Mental Abuse
The applicant must document substantial physical or mental abuse as a result of being a
victim of an enumerated crime or substantially similar criminal activity. 51 The
regulations define physical or mental abuse as “injury or harm to the victim’s physical
50
51
8 CFR § 214.14(c)(2)(i).
8 USC § 1101(a)(15)(U)(i)(I).
247
person, or harm or impairment of the emotional or psychological soundness of the
victim.” 52
The term “substantial” is used in both the definition of severity of the injury to the victim
and the severity of the abuse inflicted by the perpetrator. The regulations indicate “no
single factor is a prerequisite to establish that the abuse suffered was substantial.” 53 A
series of acts taken together may constitute substantial physical or mental abuse, even
when no single act alone rises to that level. 54 Some examples include:
Example #1: An applicant who was assaulted and held at gunpoint, and beaten
with a blunt object. He sustained injuries that left him hospitalized for a week
and had to go to physical therapy for three months. He continues to have back
pain and was forced to quit his job as a delivery worker. He has trouble sleeping
at night because of his pain and nightmares from the incident.
Example #2: An applicant who was a victim of domestic violence, abused over
period of two years. She did not report this abuse to the authorities or seek
medical assistance until she left her partner. She filed a disorderly conduct report
with the police. She has trouble holding on to a job for longer than a few
months, has difficulties with concentrating on tasks, and exhibits signs of
depression.
Example #3: An applicant who was stalked by her ex-boyfriend for more than
six months. He sat in a car outside her house three or four nights a week, called
her office and hung up on her and her coworkers on a daily basis, and sent
unsolicited letters, gifts, and emails to her constantly. He told her that they were
destined for each other and no one can come between them. He followed her
when she tried to go out on dates. She developed a fear of being alone at night
because she constantly feels watched. She moved in with her parents and had
two deadbolt locks installed at each of the entrances.
The petition should include an explanation/documentation of how the applicant suffered
substantial injury both subjectively and objectively. The applicant’s own statement is critical to
establishing the subjective nature of the injury, and may include issues pertaining to that
applicant’s particular vulnerability. 55 The regulations state that aggravation of preexisting
conditions will be considered. 56 Moreover, it is not necessary to support the subjective elements
with a professional evaluation. The victim’s statement in his or her own words outlining the
injury that resulted from the criminal activity may be sufficient.
52
53
54
55
56
8 CFR § 214.14(a)(8).
8 CFR § 214.14(b)(1).
Id.
8 CFR § 214.14(c)(2)(iii).
8 CFR § 214.14(b)(1).
248
If there are medical reports, they may certainly be included as they provide useful objective
evidence of physical injuries and harm. If the applicant seeks counseling, consider including a
psychological evaluation. A description of how the physical and mental abuse constitutes
substantial harm as defined by the regulations should be addressed in the application cover letter.
E.
Admissible to the U.S.
The applicant must be admissible for nonimmigrant status to obtain U visa status.
“Admissibility” is the legal standard for all foreign nationals applying for a legal status to
either enter or extend their stay in the U.S. 57 Common grounds of inadmissibility
include:
•
Entry without inspection
•
Criminal convictions
•
Unlawful presence
•
Previously lying to federal immigration authorities (i.e., submitting applications
with false information or presenting false documents)
•
Unlawful voting
•
Claiming to be a U.S. Citizen
Many, but not all, grounds of inadmissibility may be waived at USCIS’s discretion.
Those seeking a waiver must file Form I-192 with accompanying fee or request for a fee
waiver. In adjudicating the waiver, USCIS will balance the adverse factors of
inadmissibility against the social and humanitarian considerations presented. 58 If the
inadmissibility is based on violent or dangerous crime, then the Department of Homeland
Security (DHS) will exercise favorable discretion only in extraordinary circumstances. 59
ƒ
57
58
59
Practice Pointer: In the affidavit, outline the circumstances that warrant favorable
exercise of discretion, such as reasons the applicant wants to stay in/enter the U.S.
and any sympathetic factors that explain the issue giving rise to the inadmissibility.
INA § 212; 8 USC § 1182.
8 CFR § 212.17(b)(1).
8 CFR § 212.17(b)(2).
249
III.
Special Considerations
A.
U Interim Relief
Approximately 7,000 individuals received provisional – or interim – relief prior to the
release of U visa regulations. With no regulatory guidance, these applications tracked the
language of the statute, and would include a letter from law enforcement documenting
cooperation, the applicant’s biographic information, a copy of the passport information
page, documentation that the applicant was a victim of qualifying criminal activity, and
documentation of the harm suffered. Based on the presentation of a prima facie case,
USCIS would generally grant deferred action status, which qualified the applicant for
employment authorization.
While those with U interim relief were required to apply for U status by April 14, 2008,
on December 18, 2009 USCIS extended that deadline to February 1, 2010. 60 USCIS
notified those individuals potentially affected by termination of interim relief status on
November 9, 2009, advising them of this change. U interim relief recipients who miss
this new deadline may qualify even after February 1, 2010 if they can establish
exceptional circumstances for failing to meet the deadline. Exceptional circumstances
may include the applicant’s incapacitation or incompetence during the relevant time
period. Consult an immigration attorney immediately, as the period of time from the
filing deadline to the time of application for full U status may trigger inadmissibility
issues.
Those granted U interim relief are exempt from providing a newly executed Form I-918,
Supplement B certification, and if approved, the U status will be retroactive to the date of
initial interim relief approval.
B.
Derivative Family Members
Certain family members may accompany or follow to join the U principal applicant,
whether in the United States or overseas. 61 Family members are considered “qualified”
as derivatives depending on their relationship to the principal, the age of the principal at
the time of filing, and the age of the derivative. 62 U principals over 21 years of age at the
time of filing may include as derivative applicants their spouse and unmarried children
under the age of 21. Applicants under 21 years of age at the time of filing may include
60
61
62
“U Nonimmigrant Relief Final filing Date Extended” USCIS Update, Dec. 18, 2009,
www.uscis.gov; www.aila.org doc. 09221223
INA § 101(a)(15)(U)(ii); 8 USC § 1101(a)(15)(U)(ii).
An eligible qualifying member will be admitted in one of the following U nonimmigrant statuses;
U-2 spouse, U-3 child, U-4 parent of a U-1 holder who is a child under 21 years of age, or U-5
unmarried sibling under the age of 18. 8 CFR § 214.14(f).
250
their spouse, children, parents, and unmarried siblings under the age of 18. 63 Note that a
qualifying family member who is the perpetrator/abuser cannot apply for derivative
status. 64
The relationship between the U applicant and the qualifying family member must exist at
the time of filing and continue to exist at the time of adjudication. 65 The regulations
protect applicants and derivatives that ‘age out’ during the adjudication process. If the U
principal was under 21 at the time of filing for an unmarried sibling, USCIS will continue
to consider the sibling a qualifying family member even if at the time of adjudication the
U principal is no longer under 21 and/or the sibling is no longer under 18 years of age. 66
Derivatives must be able to document their qualifying relationship to the principal
applicant, with a birth or marriage certificate, and must be admissible to the U.S. 67
Qualifying family members who may be inadmissible may file a waiver on Form 1-192.68
To apply for derivative status on behalf of qualifying family members, a U principal must
submit Form I-918, Supplement A, “Petition for Qualifying Family Member of U-1
Recipient” for each family member. The U principal may apply on behalf of the
qualifying family member either at the same time as their U visa application, or at a later
date. All Form I-918, Supplement A’s must be accompanied by initial evidence 69 and the
required biometrics fees (or fee waiver). 70 If represented by counsel, a separate Form G28 for each derivative should also be included.
Derivatives presently in the U.S. are eligible to apply for employment authorization
concurrently with Form I-918, Supplement A, or at any time thereafter. 71 Derivative
family members that live abroad may apply for employment authorization following their
entry into the U.S. in derivative U status. 72
63
64
65
66
67
68
69
70
71
72
Id.
8 CFR § 214.14(f)(1).
8 CFR § 214.14(f)(4).
8 CFR § 214(f)(4)(ii).
8 CFR § 214.14(f)(1).
8 CFR § 214.14(f)(3)(ii).
Initial evidence includes evidence demonstrating the qualifying relationship, and if the derivative
is inadmissible, a Form I-192 waiver of inadmissibility. If the Form I-918, Supplement As are not
filed at the same time as Form I-918 but are filed at a later date, they must be accompanied by a
copy of the Form I-918 that was filed on behalf of the principal petitioner or a copy of his or her
Form I-94 demonstrating proof of U status. 8 CFR § 214(f)(2).
Id.
8 CFR § 214.14(f)(7).
Id.
251
C.
If Your Client Was or Is in Deportation Proceedings
1.
Victims in Removal Proceedings
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An individual in removal proceedings may apply for U status, by filing
the I-918 with USCIS, not with Immigration Court.
An applicant in proceedings must file a joint motion with ICE to
terminate removal proceedings if U status is granted. 73
Derivative family members in proceedings may also seek a joint motion
with ICE to terminate if Form I-918, Supplement A was approved on
their behalf.
The motion should be filed with the Immigration Court or Board of
Immigration Appeals (BIA).
A grant of the motion results in cancellation of the order of removal,
exclusion, or deportation as of the date of grant. 74
File Form I-918 at Vermont Service Center (VSC). If proceedings were
terminated, and the U visa is denied, then DHS can issue a new Notice to
Appear (NTA).
Practice Pointer: If applicant is detained or in removal
proceedings, expedited processing of the U petition may be
requested. To request expedited processing, the U application
must already be submitted to the VSC with a G-28. VSC may be
reached at (802) 527-4888. You will need to leave a message,
including the client’s Alien Registration number (A-number) 75
and the Receipt number found on the I-918 Receipt notice. It
usually takes up to 72 hours for the call to be returned.
Upon confirming that the applicant is detained, VSC will notify
ICE and issue a bona fide determination. This determination is
not predictive of adjudicative outcome, but is meant to notify
ICE that the person has submitted a complete application and
may be eligible for U status. 76
Practice Pointer: While the regulations 77 suggest that the
motion can be filed while the I-918 is pending, in practice ICE
73
74
75
76
77
8 C.F.R. § 214.14(c)(1)(i), 8 C.F.R. § 214.14(f)(2)(i).
8 C.F.R. § 214.14(c)(5)(I), 8 C.F.R. § 214.14(f)(6).
The Alien Registration number, otherwise known as the A-number, is assigned by the DHS. If
your client entered the U.S. without permission or inspection at a border point, it is likely s/he will
not have an A-number. In this case, simply leave the I-918 Receipt number with the VSC Hotline.
On applications, “none” or “n/a” should always be used instead of leaving the box blank.
VSC Stakeholders Meeting, supra note 43.
8 CFR 214.14c1(i) and (ii)
252
will not join a motion until the I-918 is approved. This may vary
among the different immigration districts.
2.
Prior Final Orders of Removal78
„
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Form I-918 should be filed at VSC.
If the U visa is approved, then an order of removal, deportation, or
exclusion by the Secretary (i.e., expedited removals, old INS exclusion
orders) will be cancelled effective the date of the U visa approval.
Orders of exclusion, deportation, or removal issued by an Immigration
Judge or the BIA must be reopened and terminated to be cancelled.
Practice Pointer: When reviewing prior final orders of
removal, first call the EOIR Hotline at 800-898-7180 to
determine if the Motion to Reopen should be filed with the
Immigration Court that issued the order or with the BIA. The
Hotline has an automated system that, with the victim’s Anumber, will indicate if an appeal was made in the prior case.
If an appeal is on file, a Motion to Reopen with the BIA will
need to be filed with the Immigration Court. The Office of the
Chief Counsel should be contacted to determine if it would be
willing to join the motion to reopen and terminate the prior
order.
„
If the U visa is denied, the stay will automatically terminate on the date
of the denial.
IV.
After Issuance of U Status
A.
Employment Authorization
The Employment Authorization Document (EAD) issued to the U-1 principal should be for the
full four-year period, allowing for one-year extensions if law enforcement certifies that continued
cooperation is necessary. If the EAD is not granted for the full period, there may be an error. In
this situation, contact VSC at 802-527-4888. If it was not an error, a renewal can be filed by
submitting Form I-765, proof of identity, two passport photos, and appropriate filing fee 79 (or fee
waiver). Those applying for U derivative status within the U.S. will need to apply for the EAD
78
79
“U Visa Interim Regulations Fact Sheet and Guidance,” National Network to End Violence
Against Women, available at www.immigrantwomennetwork.org.
USCIS filing fees can be found at www.uscis.gov. As of the time of writing, the filing fee for an
I-765 was $340.00 (payable to Department of Homeland Security), but since filing fees are
subject to change, the amount should be verified prior to filing.
253
by submitting Form I-765 along with the Form I-918, Supplement A, and include proof of
identity, two passport photos, and appropriate filing fee (or fee waiver).
B.
Travel Overseas
Technically, individuals in U status are eligible to apply for a U visa at a U.S. consulate, and may
use that visa to reenter the U.S. after a trip abroad. However, overseas travel raises a number of
concerns in this context, and it may be wise to err on the side of caution and consider advising
clients against overseas travel. For example:
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C.
There is no guarantee that the visa will be issued;
If the applicant accrued “unlawful presence,” 80 departure from the U.S. may trigger a
three- or ten-year bar to future immigration benefits in the U.S. 81
Individuals in U status applying for adjustment of status to permanent residency must
demonstrate continuous physical presence in the U.S. 82 The regulations state that “an
alien shall be considered to have failed continuous physical presence…if the alien has
departed from the United States for any period in excess of 90 days or for any periods in
the aggregate of 180 days.” 83
Adjustment of Status to Permanent Residency
1. Eligibility to Adjust Status
Under INA § 245(m), a U visa holder may be eligible to adjust status to that of a lawful
permanent resident. In order to adjust, U nonimmigrants must demonstrate:
80
81
82
83
84
85
86
(1)
Lawful admission to the U.S. as a principal or derivative in U status (U1, U-2, U-3, U-4, or U-5 nonimmigrant status); 84
(2)
U status at the time of application, OR accrual of at least 4 years in U
interim relief status; 85
(3)
Continuously presence in the U.S. for three years;
(4)
Is not inadmissible; 86
Discussed at length in Part A, section I.B.1 “Immigration Status.”
INA § 212(a)(9)(B), 8 USC § 1182(a)(9)(B).
8 CFR 245.24(a)(1).
Id.
Derivatives of the principal U nonimmigrant (U-2, U-3, U-4, and U-5) are able to submit an application to
adjust status independently from the principal U-visa holder, unlike derivatives of a T nonimmigrant who
must file at the same time or wait until after the principal T-1 has submitted an application to adjust status.
See 8 CFR § 245.23(b)(1).
U interim relief status is discussed at length in Part A, section III.A “U Interim Relief.”
Grounds of inadmissibility are listed at INA § 212(a)(3)(E).
254
(5)
Has not “unreasonably refused to provide assistance to an official or law
enforcement agency…after the alien was granted U nonimmigrant status,
as determined by the Attorney General, based on affirmative
evidence;” 87 and
(6)
That a favorable exercise of discretion is “justified on humanitarian
grounds, to ensure family unity, or is in the public interest.” 88
An applicant may not adjust if:
(1)
They participated in Nazi persecution, genocide, or any act of torture or
extrajudicial killing (other grounds of inadmissibility do not preclude
adjustment).
(2)
Affirmative evidence shows that the person unreasonably refused to
provide assistance in investigation or prosecution of criminal activity.
(3)
U nonimmigrant status has been revoked. 89
2. Inadmissibility and Discretion
The regulations clearly state that INA § 245(m) is a distinct form of adjustment, and
therefore does not have the admissibility requirements detailed in 8 CFR §§ 245.1 and
245.2. 90 The only bar to adjusting U nonimmigrants is INA §212(a)(3)(e), which makes
inadmissible those “[p]articipating in Nazi persecution, genocide, or the commission of
any act of torture or extrajudicial killing.” 91 This ground is not waivable, so there would
be no basis to file Form I-601, Application for Waiver of Ground of Inadmissibility.
However, U adjustment is a discretionary benefit, and the burden is on the applicant to
show that a favorable exercise of discretion is merited. Since adverse factors often
overlap with inadmissibility grounds, it may be necessary to overcome those factors in
advocating for a favorable exercise of discretion. For example, applicants who have
been convicted of a crime may not be able to adjust, absent a showing of exceptional and
extremely unusual hardship. 92 Given that the regulations are so new, it is unclear at this
point if a denial of adjustment by USCIS will survive judicial review.
87
88
89
90
91
92
8 CFR § 245.24(b)(5).
8 CFR § 245.24(b)(6).
8 CFR § 245.24(c).
8 CFR § 245.24(l).
Id.
Preamble, supra n. 53, at 33; See Matter of Jean, 23 I&N Dec. 373, 383-384 (A.G. 2002), aff’d
Jean v. Gonzales, 452 F.3d 392 (5th Cir. 2006). USCIS Interim Final Rule, 72 Fed. Reg. 53014 at
53021 (2007), supra n. 3.
255
3. Documenting U-Based Adjustment Applications
The application to adjust status must contain the following documents: 93
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Form I-485, Application to Register as a Permanent Resident (including the
additional instructions listed in Form I-485, Supplement E); 94
Form G-325A, Biographic Information, if you are between the ages of 14
and 79;
Form G-28, if represented by counsel;
Appropriate filing fees or request for fee waiver;
Photocopy of the applicant’s I-94, Arrival-Departure Record;
Proof of applicant’s U status (Copy of Form I-797, Notice of Action,
granting U nonimmigrant status);
Photocopy of all pages of applicant’s passport(s) that was valid during the
period of U status. If applicant does not have a passport or equivalent travel
document, an explanation should be included in the affidavit;
Dates of any departure from the U.S. as well as the “date, manner, and place
of each return;”
Sealed medical exam, including vaccinations.
Practice Pointer: The medical examination is typically required to
determine if the applicant would be ineligible based on medical grounds.
However, since those grounds are not at issue in a U visa adjustment, it is
unclear if the medical exam should be required in these cases. This is an
important issue, given the expense of the medical exam and concerns
some individuals may have with the necessary vaccinations. As of the
time of writing, USCIS indicated that it would issue a Request for
Evidence (RFE) 95 if it is determined that such a medical exam is
required. However, if the medical exam is submitted with the adjustment
of status, it will facilitate adjudication.
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Evidence that the applicant has not been absent from the U.S. for any period
greater than 90 days, or any periods in the aggregate of 180 days or more.
Practice Pointer: An exception is if the absences “were necessary to
assist in the investigation or prosecution of the criminal activity or were
otherwise justified.” 96
93
94
95
96
8 CFR § 245.24(d).
As of this writing, Form I-485, Supplement E contains only instructions and can be found at
www.uscis.gov.
For more information on this issue, refer to “Practice Pointers and Guidance: Medical
Examination for U Adjustment Applicants,” August 2009. National Network to End Violence
Against Women, available at www.immigrantwomennetwork.org.
8 CFR § 245.24(d)(5)(iii).
256
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Evidence that the applicant did not unreasonably refuse law enforcement
requests for cooperation. This requirement may be met with a newly signed
Form I-918, Supplement B, “U Nonimmigrant Status Certification” or an
affidavit explaining any requests for assistance by law enforcement and the
applicant’s response. 97
Practice Pointer: At the time of this writing, the regulations require a
written certification form from law enforcement that the applicant has
not unreasonably refused to cooperate. However, it is unclear that
USCIS will require this element once the regulations are final.
Practice Pointer: Regardless of whether a certification from law
enforcement will be required, information about the victim’s willingness
to cooperate, or that s/he did not unreasonably refuse to cooperate with
law enforcement, should be included in the sworn affidavit.
Practice Pointer: If the victim was unable to cooperate, an affidavit
from the victim explaining why the refusal was reasonable should also be
included. Other evidence to establish that the refusal was reasonable
may include statements by a therapist and others close to the victim,
explaining the victim’s inability to cooperate.
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Evidence that applicant has at least three years of continuous physical
presence. Examples include, but are not limited to, taxes, lease agreements,
rent receipts, utility bills, school records, credit card statements, birth and/or
marriage records, hospital records, and the applicant’s sworn statement.
Practice Pointer: While it is not necessary to prove physical presence
for every day of the three years, it must be established that a person did
not leave the U.S. for more than 90 days at one time, or an aggregate of
180 days. If a person has traveled substantially during the three years,
take care to include enough documentation to prove the days do not add
up to more than 180 days.
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Evidence establishing that approval is warranted as a matter of discretion on
humanitarian grounds, to ensure family unity, or is otherwise in the public
interest.
Practice Pointer: Evidence can include family ties (including U.S.
Citizen children), community ties and volunteer work, any medical needs
that the victim or victim’s family is experiencing (especially if related to
the crime), length of residency in the U.S., and access to the U.S. court
system. Additionally, country conditions from the victim’s home
97
8 CFR § 245.24(e)(2).
257
country that would adversely affect him/her can also be included to show
the importance of favorable discretion on humanitarian grounds.
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Evidence relating to discretion, listed above and including any and all
mitigating equities, which might offset any adverse factors. Where adverse
factors are extreme, a showing of exceptional and extremely unusual
hardship in the case of denial may be required. Adverse factors may include,
but are not limited to, crimes, drug use, and instances of fraud.
4. Transition Rule
The transition rule applies to applicants that have accrued 4 years or more in U interim
relief status. In general, U nonimmigrant status cannot be extended beyond 4 years, and
applicants must be in valid U status at the time of filing for adjustment. 98 However,
given the delay in promulgating the U regulations, there are many who have accrued 4
years or more in U interim relief status. According to TVPRA 2008, applicants who have
accrued more than 3 years in U interim relief will remain in valid U nonimmigrant status
for one year from the date of approval of Form I-918. 99
Practice Pointer: If at the time of filing the Form I-918 the applicant has been
in U interim relief status for 4 years, the adjustment application can be
concurrently filed with the Form I-918. The adjustment will remain pending
until the Form I-918 is adjudicated.
5. Adjustment of Status for U derivatives
Derivatives (i.e. those who hold U-2, U-3, U-4, U-5 status) are eligible to adjust status;
however, the regulations as written present a conundrum:
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98
99
Derivative not continuously present in the U.S. for three years are not
eligible to adjust. If the principal U holder adjusts to permanent
residency, the U derivatives have no basis to extend their status. U
derivatives who gain U status after the principal are in essence precluded
from fulfilling three years in U status.
At the time of writing, USCIS has not issued guidance on how a U
derivative who gains U status after the principal will be able to remain in
U status to be eligible to adjust. The most likely solution will be to file
Form I-539 requesting extension of U nonimmigrant status.
INA § 214(p)(6), 8 USC § 1184(p)(6).
TVPRA 2008, Pub. L. No. 110-457, 122 Stat. 5044 (2008); See USCIS Interoffice Memorandum
From Carols Iturregui and Donald Neufeld, “Guidance Regarding Petitioners for U Nonimmigrant
Status with More Than 3 Years in U Interim Relief Status” (Jan. 15, 2009).
258
Practice Pointer: While this form is not explicitly eligible for a fee
waiver, under INA § 245(l)(7), all filings related to VAWA, T visas,
or U visas are eligible for a fee waiver.
6. Petitioning for a “Qualifying Family Member” 100
There is a separate process for family members that have never held U status. In these
cases, the U principal may petition for a “qualifying family member” (QFM) to directly
adjust status to permanent residency by submitting the new Form I-929. The Form I-929
may be filed concurrently with, or subsequent to, the principal’s adjustment application.
However, the Form I-929 will not be adjudicated until the U-1 principal’s adjustment is
adjudicated.
NOTE that family members who hold derivative U status (i.e. U-2, U-3, U-4, and U-5)
are not considered to be QFMs for purposes of the I-929. The following eligibility
requirements must be met to be recognized as a QFM: 101
ƒ The QFM never held U nonimmigrant status;
ƒ The qualifying family relationship 102 exists at the time of the U-1’s adjustment and
continues through the adjudication of the QFM’s adjustment;
ƒ Either the QFM or the U-1 applicant would suffer extreme hardship if the
qualifying family member is not allowed to remain in or enter the U.S.;
ƒ Principal U-1 applicant has adjusted status, has a pending application, or is
concurrently filing an application for adjustment of status.
7. Travel Issues after Filing an Adjustment Application:
As discussed above, while individuals in U status may travel outside of the U.S., issues
relating to potential inadmissibility should be discussed before departing the U.S. Such
issues are a concern even if the U nonimmigrant received advanced permission to travel
through Form I-131, Application for Travel Document (advanced parole). Most
disconcerting of these is the risk that if a U nonimmigrant accrued “unlawful presence,”
departure from the U.S. may trigger a three- or ten-year bar to future immigration
benefit. 103
U nonimmigrants pending adjustment of status must also be aware of these reentry
issues. In addition to these issues, an applicant pending adjustment of status must obtain
100
101
102
103
A “qualifying family member” should not be confused with a family member who was originally
included in the U visa petition, and currently holds U-2, U-3, U-4. or U-5 status. These derivative
U visa holders follow the same procedures to adjust status to permanent residence as the principal
U visa holder.
8 CFR § 245.24(g).
8 CFR § 245.24(a)(2). Includes the U-1 principal applicant’s spouse or child, or, if the principal
applicant is a child, a parent.
INA § 212(a)(9)(B), 8 USC § 1182(a)(9)(B).
259
The U Visa Manual
advanced parole through filing Form I-131, which must be obtained prior to departing the
U.S., otherwise the adjustment application will be deemed abandoned by USCIS. Note
that the U nonimmigrant’s prior unlawful presence will not preclude issuance of the
advance parole, nor will it impede re-entry into the U.S. However, it may nevertheless
trigger a denial of the adjustment of status. Once USCIS makes this determination, the
immigrant will be treated as an applicant for admission, subject to all grounds of
inadmissibility. 104
104
8 CFR § 245.24(j).
Page A-28
DISCLAIMER
260
These materials are provided solely for informational purposes and are not
legal advice. Transmission of these materials is not intended to create, and receipt
does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
Part B: Preparing the U Nonimmigrant Visa
Application Package
I.
The Basics of the Application
Crime victims who have suffered substantial physical or mental abuse and cooperated with law
enforcement officials to investigate or prosecute the crime may apply directly to USCIS for U
status. A petition is made by submitting Form I-918; Form I-918, Supplement B, Form G-28 and
supporting documentation to the Vermont Service Center. 105 If filing for a waiver of
inadmissibility, Form I-192 should be filed concurrently with the Form I-918. 106 A request for
fee waiver should cover the fees for both Form I-192 and biometrics.
The basic documents to include in the application package are:
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a brief cover letter acting as a roadmap to the evidence included.
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a duly signed and executed Form G-28 (on blue paper);
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105
106
107
filing fees or request for fee waiver; Form EOIR 26A 107 may be used for this
purpose;
duly signed and executed Form I-918, with copy of applicant’s birth certificate and
identify document (biographic page of passport or other government issued ID);
duly signed and executed Form I-918, Supplement B, or proof of previous grant of
deferred action pursuant to interim U relief;
duly signed and executed Form I-918, Supplement A for each derivative family
member (if appropriate) and documents establishing derivative’s identity and
relationship to primary applicant (birth certificate, marriage certificate, etc.);
duly signed and executed Form I-765, for each derivative physically present in the
U.S. applying for employment authorization. The principal applicant is not required
to file a Form I-765.
2 passport photos of each applicant requesting employment authorization (including
principal U applicant and derivative family members); 108
ATTN: U VISA UNIT; U.S. Citizenship and Immigration Services, Vermont Service Center, 75
Lower Welden Street, St. Albans, VT 05479-0001.
All immigration forms can be downloaded off the internet, available at www.uscis.gov.
This is not a required form, and an affidavit by the applicant is also acceptable. Note that at the
time of this writing, USCIS is in the process of creating a new fee waiver request form.
261
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a duly signed and executed Form I-192, if waiver of inadmissibility is being sought;
and
evidence supporting the claim (personal statement/affidavit, documentation of facts
surrounding the crime, documentation of substantial harm suffered).
II.
Preparing and Drafting the U Visa Application Package
A.
Completing the Forms
1. Form G-28
The Form G-28, or notice of appearance of an attorney or representative, designates the
attorney or representative of a religious, charitable, social service, or similar organization
as the representative on behalf of a person involved in a matter before USCIS. There is
no filing fee associated with the Form G-28, but it should be on blue paper.
2. Form I-918
Part 1. Information
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108
Complete basic background information about the applicant.
Make sure to put dates in the U.S. format (Month/Day/Year) as opposed to the
European format (Day/Month/Year) followed by many countries.
Safe Mailing Address: This is the address to which USCIS will send notifications.
It is a good idea to include the practitioner’s address to ensure that the case is
properly processed.
Date and Place of Last Entry into US: This should be taken from the current I-94
card, or stamp in the passport. If neither passport nor I-94 are available, make an
estimate and note on the form that it is an estimate.
Passport Information: If passport is not available, write “N/A.” An attempt to
obtain one should be made, but if it is not possible, then file Form I-192.
Standards for the photographs can be found at
www.travel.state.gov/passport/pptphotos/composition_checklist.html.
262
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Current Immigration Status: 109 Check client’s current I-94 card (this will usually
be a white card stapled into the passport). It is the I-94, and NOT the visa stamp in
the passport, that denotes status and authorizes length of stay. The individual’s status
is noted by a letter, hyphen, and number (usually “B-1 or B-2” or “A-3” or “G-5”),
and the expiration of that status is noted below.
Part 2. Additional Information/Specific Questions
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Q4. Law Enforcement Certification. If the applicant was not previously granted
interim U relief, then check “Yes.” If the applicant was previously granted interim U
relief, then check “No.”
Q6. Under the Age of 16. This question refers to the applicant’s age at the time of
the crime.
Q7. Employment Authorization. Check “Yes.” Principal applicants do not have
to file any additional applications to obtain employment authorization. Derivatives
must file their own Form I-765 to receive work authorization. This can be filed
concurrently with the Form I-918 if they are within the U.S.
Q8. Immigration Proceedings. This question refers to Deportation or Removal
Proceedings, only. Check “Yes” if the applicant was ever ordered to appear before
an Immigration Judge in the U.S.
Q9. Place of entry and status. This information should be taken from the visa in the
passport. If neither the visa nor passport is available, make an estimate and note on
the form that it is an estimate.
Q10. Consulate notification.
derivative is abroad.
This only applies if the principal applicant or
Part 3. Processing Information
These questions are to determine “admissibility,” a legal standard required for all foreign
nationals applying for a legal status to either enter or extend their stay in the U.S. It is
also very important to the ultimate “green card” application. Be sure that clients answer
each question truthfully, especially questions about criminal conduct in the U.S. If the
answer to ANY of the questions is “Yes,” the applicant will have to file a Form I-192,
Waiver of Inadmissibility.
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109
Q1. Criminal History. You may want to check the immigration regulations and
statutes to make sure that the applicant’s admission to a criminal act does not subject
Filing a petition for someone who is not eligible could result in a Notice to Appear (NTA) before
an Immigration Judge (IJ) and subsequent removal (deportation) from the U.S.
263
him or her to a permanent bar from immigration benefits. However, the U visa
allows most criminal acts to be waived.
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Q2. Public Charge. If the applicant has received any cash assistance from the U.S.,
state, or local government, answer “Yes” and complete a Form I-192 Waiver. 110
[Q3, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22.] Answering “Yes” to these questions
should not bar U status, but consult an immigration attorney to make sure that the
applicant is eligible for a waiver. Filing an application for someone who is not
eligible could result in applicant being placed in “deportation” or “removal
proceedings” before an Immigration Judge.
Part 4. Information about spouse and/or children
Fill in information as completely as possible. This section should contain all children,
including U.S. citizens.
Part 5. Filing on Behalf of Family Members
Check “Yes” or “No,” depending on whether the applicant is petitioning for family
member(s). If “Yes,” a separate Form I-918, Supplement A must be completed and
included for each family member.
Part 6. Attestation, Release, and Signature
Signature by the applicant certifying that everything is true and correct under penalty of
perjury, and that the applicant understands that the USCIS can and may share this
information with other government agencies.
Part 7. Signature of Person Preparing Form, If Other Than Above
Should be completed by the attorney or advocate who assisted in preparing the forms.
This is a normal part of any immigration petition or application.
3. Form I-918, Supplement B
Except for those granted interim U relief, 111 a law enforcement certification is required of
all principal U applicants. The Form I-918, Supplement B is the law enforcement
certification (“LEC”), which can only be signed by:
110
111
In addition, if an applicant has received public benefits in the name of a U.S. Citizen child, s/he
may answer “No” to this question. An answer of “Yes” only applies where the cash assistance
was received in the applicant’s name.
If the Applicant was previously granted interim relief on a pre-10/17/2007 application, the
applicant does not need to submit Form I-918, Supplement B. Such an applicant must provide
proof of previous grant of interim relief.
264
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A judge;
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The head of the certifying agency; 112 or
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A specified designee of the certifying agency appointed by the agency head.
Practice Pointer:
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Your first step in the U visa process should be arranging the Form I-918,
Supplement B from a law enforcement agent.
Law enforcement certifications are only valid for 6 months. As indicated
in the Federal Register, this compulsory time limit aims to prevent the
submission of “stale” certifications and to preclude “the situation where
petitioners delay filing…and they cease to be helpful to the certifying
agency.” 113
4. Form I-918, Supplement A
A separate Supplement A, G-28, and filing fee, or a request for fee waiver, must be
included for each family member being sponsored. Derivatives who are applying from
outside the U.S. will undergo an interview at the appropriate consular post. Attorneys
should examine whether derivative applicants face inadmissibility issues, such as
unlawful presence, issues around unlawful entry, or prior criminal convictions.
Part 1. Relationship
Check the appropriate relationship. 114 Applicants over 21 can file for their spouse and
unmarried children under 21. Applicants under 21 can file for their spouse, children,
parents and unmarried siblings under 18 at the time of filing of Form I-918 (not at time of
interim filing).
Part 2. Information about the Main Applicant
If the Supplement A is filed together with the original Form I-918, check “Pending” for
the last question in this section.
Part 3. Information about Derivative Applicant
Be sure to answer all questions. Answer “None” or “N/A,” but do not leave blanks.
112
113
114
The Act does not define law enforcement agency nor does it specify which law enforcement
agencies are qualified to provide the needed law enforcement certification to U visa applicants.
The interim regulations identify the head of the certifying agency or a designated official as the
appropriate person to sign the LEC
USCIS Interim Final Rule, 72 Fed. Reg. 53014 at 53023 (2007), supra n. 3.
Perpetrators/abusers can not be a qualifying family member.
265
Part 4. Additional Information
Q1. Immigration Status. This question is the same as the immigration status portion of
Part I of Form I-918.
Q4. Same as Part 2, Question 10 of Form I-918.
Q5. Immigration Proceedings. This question refers to Deportation or Removal
Proceedings. Check “Yes” only if the Family Member has been ordered to appear before
an Immigration Judge.
Q6. Employment Authorization. Note that family members already living in the U.S.
are eligible to receive employment authorization. Derivatives must file Form I-765
accompanied by Form G-28, if represented by counsel, two passport photos, appropriate
filing fee (or fee waiver), and for Q16 on Form I-765, indicate ‘a20’ as the eligibility
category.
Q8-23. As with Part 3 on the Form I-918, these questions are to determine
“admissibility.” Be sure to answer truthfully to each question. If the answer to any
question is “Yes,” a Form I-192 with filing fee or request for fee waiver will need to be
filed for each applicant. Consult an immigration attorney to determine eligibility for a
waiver and/or risk of deportation or removal.
Part 5. Attestation and Release.
This is similar to Part 6 on the Form I-918. If the family member is in the U.S., s/he
should sign. If the family member is NOT in the U.S., only the principal applicant needs
to sign.
Part 6. Signature
The same as Part 7 on Form I-918.
5. Form I-192
This two-page form should be signed and submitted for the applicant and each derivative
family member who is inadmissible under INA § 212(a), along with: 115
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115
Supporting statement and other evidence, if any, requesting favorable
exercise of discretion (may describe sympathetic circumstances that gave rise
to inadmissibility and/or the reasons why the applicant or derivative seeks to
stay/enter the U.S.);
Even though the applicant may be physically in the U.S., in order to permit them to be “entered”
into a legitimate status, the Form I-192 must be filed.
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A check or money order for $545 payable to the U.S. Department of
Homeland Security, or a request for fee waiver, must be included for each
Form I-192. 116
Completing the form
Q1-6. Self-explanatory.
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Q 7. Desired Port of Entry into US. Enter “Vermont Service Center” and the city
of the nearest District Office. For example: “VSC/New York, NY.”
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Q 8. Means of Transportation. Enter “N/A.”
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Q 9. Proposed Date of Entry. Enter the date on which you are filling out the form.
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Q10. Approximate Length of Stay in the US. Enter “Indefinite.”
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Q11. Purpose for Entering the US. Enter “Obtain U nonimmigrant status.”
Q12. I Believe I May be Inadmissible. List any and all of the issues to which
applicant answered “Yes” to in Part 3 of the Form I-918. Consult someone with
expertise in this area to make sure the ground is eligible for a waiver. It should be a
brief explanation. The most common are, “I may be inadmissible because I . . .:”
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116
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“entered the U.S. on a fraudulent visa.”
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“violated my nonimmigrant status.”
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“entered the U.S. without inspection.”
Q13. If applicant previously filed I-192, answer “have.” If applicant has never
applied to enter the U.S., s/he would never have filed this form, and can answer
“have not previously filed.”
Q14-17. Applicants for T and U nonimmigrant status do not need to answer these
questions, so response should be only “Applicant for U Status.” No other details
need to be provided.
Q18. Applicant’s Signature and Attestation. The applicant should sign and date
the form.
Q19. Preparer’s Signature and Certification. This should be completed by
attorney or advocate who assisted in the preparation of the petition. This is a normal
part of any immigration petition or application
Pursuant to 8 CFR § 103.7(c)(5), applicants for T and U nonimmigrant status may submit fee
waiver requests for I-192 applications.
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6. Fee Waiver Request
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Fee waivers are available at the sole discretion of the USCIS.
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Note in the cover letter if a fee waiver request is being included with the application.
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Form EOIR-26A may be used for this purpose. The fee waiver lists the applicant’s
assets, income, and expenses, to show that the applicant does not have sufficient
funds to pay the application fee. 117
Applying for a fee waiver will not prejudice the applicant.
Only one fee waiver per applicant needs to be filed to cover all applications
submitted together.
7. Photographs and Filing Fees
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B.
Applicant must include two (2) passport photographs (for work authorization), with
name and A# (if available) written on the back of each photo in pencil
There is no filing fee for the I-918. However, there is a biometric fee of $80, as well
as filing fees for the I-765 ($340) and the I-192 ($545). 118 Fees may be paid with
check or money order, and should include applicant’s name. 119
Preparing the Supporting Documentation
1. Personal Statement/Affidavit
The personal statement/affidavit must be in the applicant’s own voice (i.e., no legal
jargon). Applicant should submit a detailed personal statement or affidavit addressing
each element required for U status:
„
117
118
119
Details of Criminal Activity:
„
Explain who, when, and where and the circumstances of the crime
„
Indicate whether specific records of the crime are available
Gail Pendleton, National Immigration Project, Practice Pointers on Filling with VSC, Feb. 27,
2002. In addition, as indicated in supra n. 107, USCIS is in the process of developing a form to
request a fee waiver, please check www.uscis.gov prior to filing.
USCIS fees increase often. Always check www.uscis.gov for current fee schedule.
It is helpful to pay by check, because the cancelled check will have applicant’s case number on it
and is also proof of filing if USCIS misplaces the file.
268
„
„
Details of Law Enforcement Involvement:
„
Describe how law enforcement became involved
„
Name the responsible law enforcement agent
„
Describe Applicant’s cooperation in the process
Details of Substantial Physical and/or Mental Abuse:
„
„
„
State circumstances surrounding the victimization, including, but not limited to:
ƒ
Nature of the injury inflicted or suffered
ƒ
Severity of the perpetrator’s conduct
ƒ
Severity of the harm suffered
ƒ
Duration of the infliction of the harm
ƒ
Extent to which there is permanent or serious harm to the appearance,
health, or physical or mental soundness of the victim (including
aggravation of preexisting conditions)
Letter from a nongovernmental organization or clinical social worker affidavit
may be helpful to describe the situation and the trauma experienced
Information Supporting any of the Other Eligibility Requirements:
„
If there is any additional information (i.e., admissibility, helpfulness, etc.) that
the applicant wants USCIS to consider in order to establish eligibility, describe in
the affidavit.
If possible, provide the applicant with a translation of the document (if the applicant is
not fluent in English). If a written translation is not possible, orally translate the Personal
Statement, giving the applicant the chance to make edits and corrections.
2. Supporting Documentation/Exhibits
„
Any document not in English must contain a certified translation
ƒ
must include a signed and dated statement of accuracy by the translator,
i.e. - “This is to certify that I am competent to translate from [insert
language] into English and that the attached translation is accurate.”
ƒ
translated document should be on top of the foreign language document
to allow the Adjudicator to see the English version first.
269
„
„
„
Applicant’s Marriage Certificate. If applicant is filing for her/his spouse, a copy
of the marriage certificate with translation, must be included. If either the
principal applicant or the spouse was previously married, include proof of the
termination of all previous marriages (death certificate or divorce decree with
translation); 120
Birth Certificates.
ƒ
If applicant is filing for children, provide a copy of the child’s birth
certificate. If the child was adopted, include official copy of certificate
or record of adoption. 121
ƒ
If applicant is filing for parents, the principal applicant’s birth certificate
must be included. If both parents are not listed on the birth certificate,
also include the parent’s marriage certificate.
ƒ
If applicant is filing for siblings, the principal applicant’s birth certificate
and the derivative applicant’s birth certificate should both be included to
demonstrate the relationship.
General Exhibits. Try to submit at least one document, in addition to the Personal
Statement, that addresses each element. Examples of general exhibits include:
ƒ
Witness affidavits (counselors, case managers, shelter workers, family
members, friends, ministers, etc);
ƒ
Trial transcripts;
ƒ Court documents;
ƒ Police reports;
ƒ Hospital and other medical records;
Practice Pointers:
120
121
ƒ
Double-sided copies are acceptable, and copies do not have to be
notarized or certified;
ƒ
VSC suggests highlighting key portions of exhibits;
USCIS recognizes marriages as valid based on the laws of the country where the marriage took
place. This may be an issue with tribal, dowry, or other non-state marriages, so you may need to
supplement the documentation with evidence demonstrating the validity of the marriage. The
Library of Congress is an excellent resource for research on this subject.
Note that not all countries recognize adoption, including several Muslim countries. You may want
to consult with an attorney familiar with local laws regarding adoption in that country.
270
3. Application Checklist
ƒ
Cover letter printed on your agency’s letterhead. 122
ƒ
Form G-28 (if applicable).
ƒ
Filing Fees or EOIR-26A, Fee Waiver Affidavit.
ƒ
Form I-918, with
ƒ
ƒ
ƒ
Form I-918, Supplement B, or proof that applicant was previously granted U
interim relief.
ƒ
Form I-192 Waiver (if applicable) for principal applicant.
ƒ
Form I-918, Supplement A and I-765 (if applicable) for each family
member.
ƒ
ƒ
ƒ
122
applicant’s birth certificate
applicant’s identity document.
two (2) photos;
identity documents for each derivative;
documents establishing relationship to the principal;
ƒ
Filing Fees or EOIR-26A, Fee Waiver Affidavit
ƒ
Form I-765 for each derivative, if applicable
ƒ
Form I-192 for each derivative, if applicable
ƒ
Tabbed Exhibits:
ƒ
Personal Affidavit
ƒ
Witness affidavits
ƒ
Court documents/transcripts
ƒ
Medical documents
ƒ
Any other documents relevant to the claim
See “Cover letter accompanying U petition submission” on the probono.net/ny/family website
(registration is free) in the library under immigration, which is available at:
http://www.probono.net/ny/family/library/folder.21203-Immigration. The cover letter indexes the
documents included with the application, providing a roadmap for the adjudicator and provides a
summary of how the evidence addresses the required elements.
271
The U Visa Manual
5. Finalize and Submit Application
„
„
Hole punch and fasten the original application. Use a two-hole punch and punch
through the top of the pages. Fasten the entire packet with a metal fastener.
Make two (2) copies of the complete packet. Give one to the applicant and keep
one for your files.
„
Submit via courier, or other traceable service
„
Mark Envelope in Bold Ink, Attn: U Visa Unit, and send to:
U Visa Unit
United States Citizenship & Immigration Services
Vermont Service Center
75 Lower Welden Street
St. Albans, VT 05479-0001
6. Follow Up
„
Receipt Notice(s) and Application Support Center (ASC) biometric/fingerprint
appointment(s) should arrive within three weeks of submission. 123
„
„
„
„
„
123
Practice Pointer: Ask client to provide the stamped ASC notice to
evidence attendance at appointment
Track status with receipt notice number, in the upper left hand corner of the receipt
notice, at www.uscis.gov.
If there is Request for Additional Evidence (RFE) or a Notice of Intent to Deny
(NOID), note the due date, this is the date the response was be received by VSC.
If approved, check the validity dates; U nonimmigrants can apply to adjust status
after three years in U status.
Approval validity dates for family members: U derivatives must also be in U status
for three years to be eligible to adjust.
Note that biometric appointment is not an indication of approval
Page B-12
DISCLAIMER
272
These materials are provided solely for informational purposes and are not
legal advice. Transmission of these materials is not intended to create, and receipt
does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
Identification and Legal Advocacy for Trafficking Survivors
3rd Edition – January 2009
PREPARED BY
NY ANTI-TRAFFICKING NETWORK LEGAL SUBCOMMITTEE
Suzanne B. Seltzer, Klasko, Rulon, Stock & Seltzer LLP
Suzanne Tomatore, Immigrant Women and Child Project, City Bar Justice Center
Ivy Suriyopas, Asian American Legal Defense and Education Fund
Juhu Thukral, Sex Workers' Rights Project, Urban Justice Center
Elizabeth Reichard, Fragomen Fellow, City Bar Justice Center
Sapna Patel, Sex Workers Project, Urban Justice Center
Many thanks to Dechert LLP for publishing this manual.
© 2009 NY Anti-Trafficking Network Legal Subcommittee. All rights reserved. Materials have been abridged from laws, court
decisions, administrative rulings, and other memoranda and should not be considered as legal opinions on specific facts or
as a substitute for legal counsel.
273
[DO NOT REMOVE THIS PAGE BREAK]
274
Table of Contents
Part A:
Is The T Visa Appropriate For Your Client?
Page
I.
Introduction
A-1
A.
Initial Considerations in Case Evaluation
A-3
1.
Immigration Status
A-3
2.
Liability for Criminal Behavior
A-5
3.
Privilege
A-6
4.
“Smuggled In” Versus “Trafficked In”
A-7
5.
“Labor Exploitation” Versus “Trafficking”
A-7
B.
II.
Continued Presence and Certification
A-8
Qualifying for T Visa Status: Regulatory Elements
A-10
A.
T Visa Eligibility
A-11
B.
Definition: Victim of a Severe Form of Trafficking
A-12
C.
Physically Present
A-15
D.
Complied With Any Reasonable Request To Assist Law Enforcement
A-15
E.
III.
A-18
Special Considerations
A-20
A.
If Your Client is a Child
A-20
1.
Establishing Coercion
A-20
2.
Reasonable Request to Assist LEAs
A-20
3.
Hardship Upon Removal
A-21
4.
Benefits
A-21
B.
C.
IV.
Suffer Extreme Hardship Upon Removal Harm Involving Unusual
and Severe Harm
Derivative Family Members
A-22
1.
General Application
A-22
2.
Consular Processing of T Visa
A-23
3.
Derivative Children
A-23
Representing Trafficking Victims in Immigration Court
A-24
After Issuance of T Status
A-24
A.
Employment Authorization
A-24
B.
Travel Overseas
A-25
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These materials are provided solely for informational purposes and are not
legal advice. Transmission of these materials is not intended to create, and receipt
does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
C.
V.
Adjustment Of Status To Permanent Residency
Industries Where Victims are Predominantly Found
A-25
A-27
A.
Factory Workers
A-27
B.
Migrant Workers
A-27
C.
Domestic Workers
A-27
D.
Household Employees of Diplomats
A-28
E.
Restaurant Workers
A-28
F.
Sex Workers
A-29
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These materials are provided solely for informational purposes and are not
legal advice. Transmission of these materials is not intended to create, and receipt
does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
Table of Contents
Part B: Preparing The T Nonimmigrant Petition
Page
I.
The Basics of the Application
B-1
II.
Preparing and Drafting the T Visa Application Package
B-2
A.
Completing the Forms
B-2
1.
The G-28
B-2
2.
The I-914
B-2
3.
The I-914, Supplement A
B-5
4.
The I-914, Supplement B
B-6
5.
The I-192
B-7
6.
EOIR-26A “Fee Waiver Request”
B-8
7.
Photographs and Filing Fees
B-9
B.
III.
Preparing the Supporting Documentation
B-9
1.
Personal Statement/Affidavit
B-9
2.
Prepare Summary of Law, Memorandum of Law,
or Brief
B-11
3.
Prepare/Organize the Exhibits
B-13
4.
Prepare Cover Letter
B-15
5.
Assemble the Application
B-15
6.
Mail the Application
B-15
7.
Follow Up
B-16
Sample Questions for Legal Assessment
B-17
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These materials are provided solely for informational purposes and are not
legal advice. Transmission of these materials is not intended to create, and receipt
does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
Identification and Legal Advocacy for Trafficking Survivors
Preface
The NY Anti-Trafficking Network 1 is a coalition of diverse legal and social service
providers in New York State and surrounding regions dedicated to ending human
trafficking and coordinating resources to provide services to trafficked persons. The
Network’s Legal Subcommittee advocates on policy issues, advises on technical legal
issues, and works toward educating the attorneys on the problem of human trafficking in
its many manifestations. The Legal Subcommittee drafted this manual to provide
guidance to lawyers on issues that arise in the context of representing trafficking
survivors. The manual is designed for practitioners who are familiar with basic legal
terms and concepts, to offer some insight into the process. It is not meant to be an
exhaustive source of the law. 2
This manual is focused on the T visa, which was established by the Trafficking Victims
Protection Act of 2000 (TVPA) and put into effect by immigration regulations published
in January 2002. The T visa provides immigration relief to foreign nationals trafficked
into the United States. If favorably adjudicated, it grants the survivor permission to
remain within the U.S. and to obtain employment authorization for three years. At the
end of the three years, or when the investigation is complete, the survivor is eligible to
petition for permanent residency. This manual discusses the background of the T visa,
suggests points to consider in evaluating a client’s eligibility for the T visa, evaluates the
statute and the regulations, and offers step-by-step instruction on preparing a T
application for consideration by the U.S. Citizenship & Immigration Service.
This manual is not meant to provide instruction on every aspect of representing survivors,
or to take the place of direct legal advice, advocacy, and a practitioner’s own research
and evaluation of the survivor’s case. Nor does this manual address in detail other
avenues of immigration relief that may be available to trafficking survivors. These other
avenues may include, inter alia: asylum, a petition under the Violence Against Women
Act (VAWA), the U visa, and petitions for Special Immigrant Juvenile Status. We also
encourage practitioners to be creative in exploring other possibilities for immigration
relief on behalf of survivors.
Please access our website at www.ny-anti-trafficking.com for updates and research on
trafficking related issues.
1
The network was originally convened as the NYC Service Network for Trafficked Persons. The name of the
network was changed to reflect the broad scope of work performed by the various members of the network.
2
An excellent source of relevant legal documents is “Human Trafficking: A Resource Guide to U.S. Law,”
Legal Aid Foundation of Los Angeles, June 2004. (www.lafla.org/clientservices/specialprojects/traffic.asp).
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These materials are provided solely for informational purposes and are not
legal advice. Transmission of these materials is not intended to create, and receipt
does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
Part A: Is The T Visa Appropriate For Your
Client?
I.
Introduction
Human trafficking is a contemporary manifestation of slavery and organized crime affecting men,
women, and children worldwide. 3 Violations of human rights are “both a cause and consequence
of trafficking in persons.” 4 The global problem of trafficking manifests itself in many forms as
traffickers develop increasingly sophisticated methods to entrap individuals in modern-day
slavery. To lure their victims, traffickers use false businesses and schemes, such as educational
and work programs, matchmaking companies, mail-order bride companies, maid and domestic
servant schemes, and illicit foreign adoptions. Often believing these opportunities to be
legitimate, victims are then trafficked into sweatshops, agricultural labor, panhandling, the sex
industry, and domestic servitude, to name a few.
Often trafficking crimes appear similar to alien smuggling and irregular migration, but are
distinguishable by the nature of the associated human rights violations. 5 Trafficking also
encompasses labor law violations, gender-based crimes, and a myriad of other illegal activities.
The Center for the Study of Intelligence characterized trafficking in persons generally as the use
of force and deception to transfer the victim into circumstances of extreme exploitation. 6 As
defined by the Trafficking Victims Protection Act (TVPA) of 2000 7 and the Trafficking Victims
Protection Reauthorization Act (TVPRA) of 2003 8 and 2005 9 “trafficking” refers to “severe
forms of trafficking in persons,” meaning:
3
Amy O’Neill Richard, International Trafficking in Women to the United States: A Contemporary Manifestation
of Slavery and Organized Crime, Center for the Study of Intelligence (Nov. 1999), available at
https://www.cia.gov/library/center-for-the-study-of-intelligence/csi-publications/books-andmonographs/trafficking.pdf.
4
Recommended Principles and Guidelines on Human Rights and Human Trafficking (United Nations Economic
and Social Council, May 2002) E/2002/68Add.1, available at
www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.2002.68.Add.1.En?Opendocument.
5
O’ Neill Richard, supra note 3, at v.
6
Id. More specifically, the President’s Interagency Counsel on Women (which was established to ensure the
implementation of the Platform for Action of the 1995 UN Fourth World Conference on Women, and
coordinates international and domestic policy to develop policies and programs for the advancement of women)
formulated the following definition: “Trafficking is all acts involved in the recruitment, abduction, transport,
harboring, transfer, sale or receipt of persons; within national or across international borders; through force
coercion, fraud deception; to place persons in situations of slavery or sexual services, domestic servitude,
bonded sweatshop labor or other debt bondage.”
7
Trafficking Victims Protection Act of 2000, Pub. L. No. 106-386 Division A, 114 Stat. 1464 (2000) (TVPA).
8
Trafficking Victims Protection Reauthorization Act of 2003, Pub. L. No. 108-193. [TVPRA 2003].
9
Trafficking Victims Protection Reauthorization Act of 2005. Pub. L. No. 109-164. [TVPRA 2005].
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legal advice. Transmission of these materials is not intended to create, and receipt
does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
„
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. 10
In January 2002, regulations were issued to elaborate on this statutory definition in order to
provide law enforcement officials and immigration officers with a greater understanding of the
new classification for victims of severe trafficking in persons and eligibility requirements for
trafficking (T) visas. In December 2003, the TVPRA was signed into law. It was followed by
the 2005 reauthorization in January 2006. Both reauthorizations provided broader protection to
trafficking victims. For example, under these reauthorizations, statements of cooperation from
state and local law enforcement should be considered for purposes of the Law Enforcement
Agency 11 attestation, 12,13 a “trauma” exception was made for the requirement to cooperate, 14 and
T status and benefits was extended from a total of three years to four years. 15 As of the drafting
of this manual, additional legislative changes are being considered by Congress in the form of the
2007 Reauthorization. 16
As mentioned above, because of the range of crimes that trafficking encompasses, persons who
are trafficked may come into contact with a number of different law enforcement agencies. For
instance, if a child is trafficked into agricultural work, they may come to the attention of local law
enforcement or social services, the Department of Labor, U.S. Citizenship & Immigration
Services, Immigration and Customs Enforcement, or the Federal Bureau of Investigation.
10
In order to be eligible to apply for a T visa the primary applicant must meet this definition of “severe forms of
trafficking in persons” trafficking. 8 CFR § 214.11(a).
11
8 C.F.R. § 214.11(a). ‘LEA’ refers to any federal law enforcement agency that has the responsibility and
authority for the detection, investigation, or prosecution of severe forms of trafficking in persons. Qualified
LEAs include, but are not limited to the offices of the Department of Justice, the United States Attorneys, the
Civil Rights and Criminal Divisions, the FBI, the USCIS, the ICE, the United States Marshals Service, and the
Diplomatic Security Service of the Department State.
12
Trafficking Victims Protection Reauthorization Act 2003. Pub. L. No. 108-193. 22 U.S.C.A. §7105(3)(iv).
13
This is the official “Law Enforcement Agency” attestation, also referred to as the “LEA” endorsement.
14
Trafficking Victims Protection Reauthorization Act 2005. Pub. L. No. 109-164. 8 U.S.C. § 1101
(a)(15)(T)(iii)(2006).
15
Trafficking Victims Protection Reauthorization Act 2005. Pub. L. No. 109-164. 8 U.S.C. § 1184 (o)(7) (2006).
16
Currently, Congress is engaged in the passage of the William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2007. The U.S. Senate is pending passage of Senate Bill S. 3061 that expands
protections for trafficked persons. The U.S. House of Representatives has passed a slightly differing version as
HR 3887. Once Congress agrees on one bill and it is passed in both Houses there will be additional protections
for trafficked persons. Please consider these future additions when working with trafficked persons starting in
2009.
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280
These materials are provided solely for informational purposes and are not
legal advice. Transmission of these materials is not intended to create, and receipt
does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
The agencies most likely to come into contact with trafficked persons on a regular basis are U.S.
Citizenship and Immigration Services (USCIS) or Immigration and Customs Enforcement
(ICE). 17 ICE investigates trafficking cases and assists with trafficking victims, while USCIS in
Vermont adjudicates T visa petitions.
The TVPA and the TVPRAs respond to the international problem through a multi-pronged
approach:
„
the apprehension and prosecutions of traffickers;
„
increased sentencing for traffickers;
„
protection and assistance for recognized victims of trafficking the same as those available
to refugees through the Office of Refugee Resettlement (ORR); Department of Health
and Human Services; 18
„
allowing victims assisting law enforcement to remain in the country during the course of
the criminal investigation (“continued presence”); and
„
providing victims with an opportunity to regularize their status in the U.S. to T
nonimmigrant status, and later adjust their status to permanent residency (green card).
The purpose of this manual is to provide guidance on the last prong; namely, assisting victims
with issues concerning their immigration status. While the most immediate form of immigration
relief for a trafficking victim is the issuance of “continued presence,” the process for continued
presence must be initiated by an LEA. T non-immigrant status, on the other hand, may be selfpetitioned by the victim by filing Form I-914, Application for T non-immigrant status directly
with the USCIS Vermont Service Center (VSC).
A.
1.
Initial Considerations in Case Evaluation
Immigration Status
Given the circumstances surrounding their entrance into the United States, victims of severe
forms of trafficking usually have issues with the validity of their immigration status. The most
common issues include the following:
17
As of March 1, 2003, the Immigration and Naturalization Service (“INS”) ceased to exist, and the functions
previously assigned to INS became part of the Department of Homeland Security (DHS). Within DHS, the
functions of INS were divided into three separate agencies (also known as ‘legacy INS’). USCIS provides
services and benefits to individual foreign nationals and employers; Customs and Border Protection (CBP)
polices the nation’s borders and inspects visitors to the United States; and ICE is responsible for investigation,
detention, and removal of unlawfully present foreign nationals has been assigned to the Bureau of Immigration
and Customs Enforcement (ICE).
18
In order to be eligible for benefits, trafficking victims 18 years of age and older must be certified by the Office
of Refugee Resettlement (ORR) at the U.S. Department of Health and Human Services (HHS). Children are not
required to cooperate with law enforcement in order to receive benefits.
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legal advice. Transmission of these materials is not intended to create, and receipt
does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
„
entering the U.S. without passing through a border post or port of entry (known as “entry
without inspection” or “EWI”). This may frequently be the case with individuals
“smuggled in;” 19
„
entering on a tourist visa (B1/B2) and engaging in unauthorized employment. This is
considered a violation of that particular status;
„
entering on a tourist visa (B1/B2) but overstaying the authorized period of stay on the I94 Departure Record. Once an individual overstays the I-94 card by even one day, they
are considered “unlawfully present.” There are serious and permanent consequences
associated with unlawful presence; 20
„
entering on a fraudulent passport or using another’s passport. This constitutes visa fraud,
and does not confer a valid non-immigrant status. However, if the individual did not
overstay the I-94 (even though fraudulently issued) he or she is not considered to be
unlawfully present.
„
entering the U.S. in a status valid for employment (such as H-1B – temporary worker, A3 - domestic employees of foreign government official, or G-5 - domestic employees for
representatives to international organizations) or for family reunification (K, V visas).
The validity of a T applicant’s immigration status is important because if an applicant is not in
valid status, and he or she is being brought to the attention of USCIS or ICE, the applicant could
be issued a Notice to Appear (NTA), and removal (deportation) proceedings may be commenced.
Another important consideration with violations of status or unlawful presence is that it may
interfere with the T application, or if not at the time of T processing, may even interfere with
future immigrant benefits (such as obtaining legal permanent resident status, the “green card”).
However, for T visa purposes, trafficking survivors are not considered “unlawfully present” if
they demonstrate that the severe form of trafficking “was at least one central reason for the
alien's unlawful presence in the United States.” 21
A waiver of inadmissibility may remedy status violations and are granted at the discretion of the
USCIS. To request a waiver of “inadmissibility” on the above grounds, form I-192 and
19
While being “smuggled” into the U.S. does not necessarily equate to being a victim of trafficking, it does not
preclude it either.
20
Once an individual is “unlawfully present” all valid visas in his/her passport are automatically cancelled. Any
future visas can only be obtained in the home country. Individuals who are unlawfully present for 180 days and
leave the U.S. are barred for three (3) years from any U.S. immigrant or non-immigrant benefit. Individuals
who are unlawfully present for a year or more and leave the U.S. are barred for ten (10) years from any U.S.
immigrant or non-immigrant benefit. Therefore, even if an individual is issued a T visa, travel outside the U.S.
may not be advised.
21
8 U.S.C. § 1182 (a)(9)(B)(iii)(V) (2006).
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These materials are provided solely for informational purposes and are not
legal advice. Transmission of these materials is not intended to create, and receipt
does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
accompanying fee should be filed concurrently with the I-914. 22 Note there is a separate filing
fee for this application, and as of the drafting of this manual, there was no fee waiver available for
the I-192. 23
2.
Liability for Criminal Behavior
Another frequent issue that arises is the T applicant’s participation in criminal activity, albeit
usually involuntary. Traffickers exert extreme control over trafficking victims and often require
them to commit criminal acts. While this is recognized as part of the phenomena of trafficking, it
is critical that liability for such acts does not interfere with the relief available to trafficked
persons under the TVPA. In protecting your client from criminal prosecution, consider the
following:
22
23
„
When approaching law enforcement to discuss cooperation, attorneys should ask
prosecutors for limited use or proffer agreements. Such agreements protect your client
against his or her own statements, except for perjured statements. The goal is to protect
your client from criminal or removal proceedings. Be aware that investigative agents
may not offer proffer agreements.
„
Attorneys and advocates should be wary of any prior arrests or convictions that may
come back and haunt your client. If a victim was arrested, especially for a prostitutionrelated offense, it is critical to engage in aggressive advocacy that avoids a conviction,
even if it is a low-level offense. As noted above, a criminal conviction may impact the
client’s ability to stay in the United States and/or obtain legal permanent residency.
PRACTICE POINT: ICE and USCIS will take into consideration if the conviction was
caused by, or incident to, the victimization. However, it is better to advocate for an
appropriate disposition.
„
Another issue to consider with respect to the criminal justice process is the timing of a T
visa application. The trafficker’s defense attorney could subpoena a victim’s application,
claiming that it contains potentially exculpatory information or is inconsistent with other
statements. Prosecutors are required to turn over potentially exculpatory evidence to the
defense. In an effort to cooperate with law enforcement and the prosecution of the
traffickers, it may be of assistance to wait until after a prosecution is complete before
submitting a T visa application. Because this delay in filing the T application may delay
your client’s eligibility for ORR benefits, attorneys and advocates should request law
enforcement to issue “continued presence,” which would enable your client to obtain
employment authorization and other ORR benefits. However, the decision to delay
submission of the T application is in the best interest of your client, notwithstanding law
enforcement’s needs, should be made on a carefully considered case-by-case basis.
This is outlined in more detail in Part B.
USCIS fee changes effective July 30, 2007 eliminated the I-192 from eligibility for a fee waiver.
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does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
3.
Privilege 24
The attorney-client privilege is an established principle of law that protects communications
between attorneys and their clients, when such communication is for the purpose of requesting or
receiving legal advice. This privilege encourages openness and honesty between attorneys and
their clients by prohibiting attorneys from revealing (and being forced to reveal) attorney/client
communications. The privilege belongs to the client, meaning that only the client may waive the
privilege to give consent to reveal the protected communications. However, certain situations
may “break” the privilege, even if the client did not have the intention to reveal the
communications. This includes the presence of a third party in attorney-client communication.
In the T application context, the presence of a social worker in the interview process or
throughout the representation may break privilege. Once privilege is broken, the communication
may no longer be kept private, and defense attorneys or prosecutors may be able to access clients’
statements. Limited exceptions to this rule include where the social worker, or other assistant, is
acting solely in the context of an interpreter or translator, or where the social worker is there
solely to facilitate the provision of legal services. 25
Generally speaking, communications between a lawyer and her client made in the presence of a
known third party are not privileged. The theory is that such communications could not have
been intended to remain confidential. 26 Nevertheless, in circumstances where a client can
demonstrate that she had a reasonable expectation of confidentiality and the communications
were “made to [or in the presence of] agents of an attorney...hired to assist in the rendition of
legal services,” the attorney-client privilege is not broken. 27 This holds even where such
communications were made entirely outside the presence of the attorney so long as the
communications were made to the third party in order to facilitate the attorney’s representation of
her client. 28 The federal courts have applied the privilege to diverse professionals working with
attorneys including “a psychiatrist assisting a lawyer in forming a defense.” 29 However, it is
24
We are grateful to Dechert LLP for researching and evaluating this important, yet complex issue. This section
provides only a cursory review of the memoranda provided to us by Dechert LLP. These memoranda are
available for review at www.ny-anti-trafficking.com.
25
See, e.g., United States ex rel. Edney v. Smith, 425 F. Supp. 1038, 1046 (E.D.N.Y. 1976). Although such
“exceptions” may not break the privilege, it is extremely important that where a social worker is playing such a
role, his or her function is fully documented as limited to that role. Should the social worker’s role go beyond
translating or facilitating the provision of legal services, it may blur the line, making the privilege easier to
pierce. Moreover, such exceptions are not absolute, and both the attorney and social worker should ensure that
any communications are made in a setting most conducive to protecting the communications.
26
See Weatherford v. Bursey, 429 U.S. 545, 554 (1977).
27
United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989), cert. denied, 502 U.S. 810 (1991).
28
Note that this privilege applies to both the testimony and records of the third party. See e.g., Federal Trade
Commission v. TRW, Inc., 628 F.2d 207, 212 (D.C.Cir. 1980)(citing United States v. Kovel, 296 F.2d 918 (2d
Cir.1961)) (Finding the reports prepared by a third party privileged where report prepared at request of attorney
and “the purpose of the report was to put in usable form information obtained from the client.”).
29
Occidental Chemical Corp. v. OHM Remediation Services Corp.,175 F.R.D. 431, 437 (W.D.N.Y. 1997).
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does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
important to remember that this jurisprudence protects communications made to an attorney or on
behalf of the services provided by an attorney, it does not extend beyond the scope of
representation provided by an attorney.
A separate question is whether there is a privilege protecting communications between a social
worker and a client made pursuant to providing other services, such as counseling, assisting with
housing, medical assistance, et cetera. This is not as well established in the law. In very broad
terms, the issue seems to turn on the professional level of the social worker, i.e. licensure or
certification, the expectations of the client as to confidentiality of the communications, and the
purpose of the communications. For example, the Supreme Court recognizes “the ability to
communicate freely without the fear of public discourse [as] the key to successful treatment” in
psychotherapy and clinical social workers. 30 However, it is not clear how far this privilege
extends. Moreover, in state courts, privilege is adjudicated under state law, and each state has
different rules regarding this matter. 31 Therefore, social workers and social services
organizations need to take every precaution to protect clients’ communications, and/or to advise
clients that such communications may not be confidential. 32
4.
“Smuggled In” Versus “Trafficked In”
Many victims of trafficking are brought into the United States without going through border
points of inspection. Basically, they are “smuggled” into the U.S. However, there are individuals
who are smuggled into the U.S. because they are fearful of crossing the border lawfully, or do not
have a valid visa to enter the U.S. and they nevertheless want to enter the country, or need to
enter to escape persecution. Their interaction with the smuggler is limited and usually involves a
transaction of entry for payment.
While many seek better lives in the U.S., those who are smuggled in may not be encompassed in
the definition of trafficking, which usually involves an on-going relationship with the facilitator
or one of the facilitator’s networks. Therefore, being “smuggled” into the U.S. does not
necessarily equate to being a victim of a severe form of trafficking for T visa purposes. However,
it does not necessarily preclude it either, and advocates should explore whether the smugglers
engaged in any behavior that would make them “traffickers” and whether your client meets any
of the requirements for the T visa.
5.
“Labor Exploitation” Versus “Trafficking”
While most trafficking cases do involve some form of labor exploitation, labor exploitation does
not always rise to the level of trafficking. Labor exploitation involves extremely low wages,
30
Jaffee v Redmond, 518 U.S. 1, 6, 15 (1996).
31
As of this writing, Dechert LLP has researched social worker privilege in New York, New Jersey, Florida,
Texas, and Arizona, available at www.ny-anti-trafficking.com/publications.html.
32
Legal Aid Foundation of Los Angeles (LAFLA) has also done substantial research on the social worker
privilege issue. Their website is www.lafla.org.
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does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
usually below minimum wage, long hours, poor working conditions, lack of avenues of redress,
and may be linked to various forms of mistreatment of immigrants. A situation becomes
“trafficking” when it involves the use of force, fraud or coercion that creates a climate of fear
preventing the individual from leaving the situation. It is important to screen individuals
presenting with labor exploitation claims for trafficking.
B.
Continued Presence and Certification
Recognizing that trafficking cases require extensive, and often lengthy, investigation by multiple
law enforcement agencies, the TVPA created two remedies for trafficking victims to ensure their
well-being from the time of discovery through case resolution. This includes ‘continued
presence’ 33 and the ‘T’ non-immigrant status, 34 the latter of which will be discussed in more
detail in the section below. Both of these remedies give the trafficked person access to services
such as shelter and medical care, services that are absolutely necessary to their survival.
However, continued presence is a more immediate form of relief, optimally taking only a few
weeks to process.
Continued presence ensures law enforcement of the victim/witness’ availability to participate in
the prosecution of the traffickers. If the witness is no longer in the country or is convicted of a
crime, continued presence may be terminated. It is important to recognize that eligibility for
continued presence does not require an imminent prosecution, nor that a victim actually rendered
assistance to law enforcement. Rather, recognizing the immediacy of the victim’s needs and the
stop-gap capability of continued presence, Congress worded the statute so that the victim may
only be a potential witness:
Federal law enforcement officials may permit an alien individual’s continued presence in
the United States, if, after an assessment, it is determined that such individual is a victim
of a severe form of trafficking and a potential witness to such trafficking in order to
35
effectuate prosecution of those responsible…(emphasis added).
It is clear from the language of the regulations that any trafficking victim that was cooperative
with law enforcement should be eligible for continued presence, even if they are not ultimately
selected as a witness.
As stipulated by the regulation, only LEAs may initiate the process. However, state or local law
enforcement can partner with a federal law enforcement agent in their investigation, requesting
that the federal agent apply for continued presence on behalf of the victim. Continued presence
33
TVPA §107(C)(3) “Federal law enforcement officials may permit an alien individual’s continued presence in
the United States, if, after an assessment, it is determined that such individual is a victim of a severe form of
trafficking and a potential witness to such trafficking in order to effectuate prosecution of those responsible….”
See also 28 CFR 1100.35.
34
8 CFR §214.11.
35
28 CFR 1100.35.
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does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
does not require the victim to make a formal statement, and in fact, prosecutors often do not want
victims to make such statements during an investigation if there is going to be a criminal trial.
Also for this reason, law enforcement may be unwilling to provide the endorsement for the T
status until the criminal trial is over or the investigation is concluded.
In practice, a grant of continued presence is issued for up to a one year increment, and may be
extended. Continued presence in and of itself does not convey any immigration status or benefit
apart from that already encompassed by the particular form of authorized continued presence
granted. Such forms may include parole, deferred action, voluntary departure or stay of a final
removal order. However, “documentation from the Service granting continued presence…will be
considered as primary evidence that the applicant has been the victim of a severe form of
trafficking in persons” unless such status has been revoked. 36
Once continued presence has been granted, ORR generates a letter for adults “certifying” that the
individual is recognized as a victim of a severe form of trafficking, or for children that they are
eligible for services as victims of a severe form of human trafficking. 37 At this point, victims are
eligible for an Employment Authorization Document (EAD). The EAD is usually issued shortly
after grant of continued presence, at which point a Social Security card can be obtained. 38
In addition to an EAD, victims may choose between public benefits or a Match-Grant program.
A refugee resettlement agency can assist with both. For those who do not have the language or
other skills to obtain immediate employment, or for those who are still traumatized from their
experience, public benefits that include food stamps, cash assistance, Medicaid, and SSI may also
be selected. These are the same benefits offered to those who enter the U.S. as refugees or who
are granted asylum. Under federal rules, benefits are generally available for nine months, but
various state implementation of these benefits by various agencies may allow for a longer period.
In the alternative, victims may instead elect to enter into a Match-Grant program. A Match-Grant
program is a three-month intensive program that may include English as a Second Language
(ESL), job training and skills, computer training, or other benefits. Either Match-Grant or refugee
benefits must be elected within 30 days of issuance of the ORR certification letter. If benefits are
not elected during this period, they are not allowed to reapply. However, other public benefits
may still be an option at any time depending on the victim meeting eligibility standards, which
may vary state by state.
36
8 CFR § 214.11(f)(2).
37
This certification does not guarantee approval of a T non-immigrant status, as such status also requires evidence
of cooperation with reasonable requests from law enforcement.
38
Employment may begin immediately upon receipt of the EAD, it is not necessary to receive the Social Security
number. As a practice point, it may be difficult to obtain the card with just the EAD. Advocates may want to
pursue obtaining a passport or copy of a birth certificate from the consulate of the client’s country of origin.
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does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
II.
Qualifying for T Visa Status: Regulatory Elements
It is difficult both to identify a trafficked person, and to determine when such a person qualifies
for the T visa. As discussed in the section on smuggling, advocates must be attuned to the
particulars of their client’s situation as most do not self-identify as trafficked persons. Often, it is
helpful to determine why they originally came to this country, how they got here, and what has
happened to them since. Many trafficking cases may initially present as domestic violence,
sexual abuse, or labor law violations. If an advocate is aware of the client’s legal remedies,
however, they may be able to more fully assess the client’s situation. The annexed suggested
questions at the end of Part B may be of assistance in an initial evaluation. 39
Particularly challenging are cases that involve child victims. By definition, a trafficked child has
already undergone an incredible trauma, repeatedly recognized in the various examples cited in
the Conference Report. 40 As with other child victims of trauma, coming forward to law
enforcement about their situation is complex and emotionally difficult if not handled in a
sensitive manner. Often, the child victim was trafficked by a relative or trusted adult and may not
want to get this person “in trouble” despite the abuse that the child has suffered. The TVPRA
recognized this in the providing that children under 18 years old need not demonstrate that they
have been willing to comply with any reasonable request for assistance in the investigation or
prosecution of trafficking. 41
Since trafficked persons suffer such extreme types of abuse, it might seem that they would be
open to discussing their experiences in order to receive help. In fact, the opposite is true—
trafficked persons are often reticent about discussing their situation or admitting to having been
victims of coercion. It can take multiple meetings with a client over a period of months to obtain
information that clarifies the situation to determine if he or she is a candidate for a T visa.
Practice Points for interviewing a potential T visa applicant:
„
Body language is key: Especially in an initial meeting, a client may be telling you far
more with his or her body language (looking down, not engaging in eye contact, lack of
affect/disengaged demeanor, or fidgeting with hair or jewelry) than through verbal
communication. It is important to observe the client’s body language as a way to build
communication. For more guidance on this issue, please see the SWP/NYANA screening
tool in the resources section of this manual.
39
Prepared by Christa Stewart, Esq., formerly Director of Legal Services, The Door.
40
Conference Recommendations: Pathbreaking Strategies in the Global Fight Against Sex Trafficking (February 23-26,
2003)(released by the Department of State, May 29, 2003), available at www.state.gov/g/tip/rls/rpt/20834.htm.
41
New Classification for Victims of Severe Forms of Trafficking in Persons, 67 Fed. Reg. 4784, 4785 (Jan. 31,
2002) (codified at 8 C.F.R. Parts 103, et al.). “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.” This was changed to include all children under the age of 18. TVPRA § 4(b)(1)(a).
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legal advice. Transmission of these materials is not intended to create, and receipt
does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
„
Do not overwhelm the client: Trafficking cases are complex and they often involve
numerous law enforcement and non-governmental agencies. It is helpful to keep an initial
meeting to less than one hour, and if necessary to facilitate the provision of legal services,
have a case manager or social worker accompany the client to the meeting. 42
„
During this initial meeting, review:
o
why the client has been referred to you for representation;
o
the definition of trafficking, under the TVPRA; and
o
the different individuals and agencies that may be involved in the client’s case.
It may be helpful to show the client the SWP Diagram of a Trafficking Case, attached in
Resources.
For guidance on subsequent meetings please see SWP Human Trafficking Intake Guide attached
at Resources.
A.
T Visa Eligibility
Upon identifying an individual as a possible victim of trafficking, the practitioner should evaluate
the individual’s eligibility for the T visa. All T visa applications are currently adjudicated within
the VAWA/T/U Visa Unit at the VSC. Over the years, VSC has provided insight into the
adjudication process and guidance on the types of documentation they look for in adjudicating
petitions. This guidance has been incorporated into the practice points noted in the sections
below. 43
In order to be eligible for the T visa, each applicant must demonstrate that he or she:
„
is or has been a victim of a severe form of trafficking in person;
„
is physically present in the United States due to trafficking; 44
„
has complied with any reasonable request for assistance in the investigation or
prosecution of acts of trafficking in persons (if they are over 18); and
„
would suffer extreme hardship involving unusual and severe harm if removed from the
United States. 45
42
Refer to section on privilege.
43
VSC Hotline for VAWA/T/U petitions is (802) 527-4888.
44
This includes American Samoa and the Commonwealth of the Northern Mariana Islands.
45
TVPA § 107(C), 8 CFR 214.11(b).
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does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
Additionally, the applicant must also demonstrate that he or she
„
has not committed a severe form of trafficking in persons offense; and
„
is not inadmissible under INA § 212. 46
Upon a finding by USCIS that the applicant has made a bona fide application for a T visa, ORR
will issue a certification or eligibility letter as it does when continued presence is granted.
However, an applicant is only entitled to obtain such certification and benefits once. If applicant
received such benefits pursuant to a grant of continued presence, he or she will not later be
eligible for such benefits even if USCIS issues a notice confirming that the petition is bona fide.
In this situation, applicants will only receive additional benefits should the T visa petition be
approved.
If USCIS does not issue a bona fide notice, applicant will only be able to obtain benefits upon
approval of T status. This will most likely occur when adjudication of the bona fide standard is
concurrent with the adjudication of the T visa.
B.
Definition: Victim of a Severe Form of Trafficking
Under the TVPRA, victims of both sex trafficking and labor trafficking may be eligible for relief.
According to the TVPA, victims of “severe forms of trafficking in persons” include:
„
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. 47
The component terms are defined by the regulations as follows:
„
Sex trafficking: the recruitment, harboring, transportation, provision, or obtaining of a
person for the purposes of a commercial sex act; 48
„
Coercion: 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
46
Waivers of certain inadmissibility grounds are available for T visa applicants. A request for a waiver can be
made by filing form I-192. However, as of the drafting of the manual, there was a non-waivable filing fee of
$545.
47
TVPA § 103(8), 8 CFR § 213.11(a) (emphasis added). In order to be eligible to apply for a T visa the primary
applicant must meet this definition of trafficking.
48
8 CFR § 214.11(a). Where as a “commercial sex act” is any sex on account of which anything of value is given
to or received by any person.
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does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
act would result in serious harm to or physical restraint against any person; or the abuse
or threatened abuse of the legal process; 49
„
Debt bondage: the status or condition of a debtor arising from a pledge by the debtor of
his or her personal services or the services of a person under the debtor’s 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
appropriately limited and defined; 50
„
Involuntary servitude: 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 a condition, that person or another person would suffer serious harm or
physical restraint; or the abuse or threatened abuse of legal process; 51 and
„
Peonage: status or condition of involuntary servitude based upon real or alleged
indebtedness. 52
In order to establish that your client is a victim of a severe form of trafficking in persons, he or
she must either submit 53 an endorsement from a law enforcement agency on Form I-914,
Supplement B, Declaration of Law Enforcement Officer for Victims of Trafficking in Persons, 54
or sufficient credible secondary evidence, describing efforts to cooperate with law enforcement,
as well as the nature and scope of any force, fraud, or coercion used against the victim. 55 This
may include, inter alia, evidence that the USCIS has granted the alien’s continued presence in
the United States as a victim of trafficking. 56
T visa determinations will be made under the “all credible and relevant evidence” standard. 57
Therefore, your client should first attempt to obtain an LEA endorsement or ICE evidence of
49
Id.
50
Id.
51
Id. This definition adopts the holding in United Sates v. Kozminski, 487 U.S. 931, 952 (1988).
52
Id.
53
See Catholic Legal Immigration Network, Inc. and the Immigrant Legal Resource Center (CLINIC), VAWA
Manual: Immigration Relief for Abused Immigrants, at ch. UT, 5 (2002) [hereinafter VAWA Manual].
54
8 CFR § 214.11 (f)(1).
55
8 CFR § 214.11 (f)(3).
56
8 CFR § 214.11 (f)(2).
57
8 CFR § 214.11(f)(3).
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does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
status as a trafficking victim. This evidence carries significant weight in T visa determinations as
agency endorsements are considered “primary evidence” and are strongly encouraged. 58
In compelling cases, however, secondary evidence may be sufficient. Secondary evidence may
be presented in the form of a personal statement and supporting documents. This evidence should
demonstrate that applicant fits the TVPA definition of a victim of a severe form of trafficking in
persons. Any credible evidence of victimization and cooperation should be included. Such
evidence may include, but is not limited to:
„
a grant of continued presence or ORR certification;
„
a description of what the person has done to report the crime to an LEA;
„
a statement indicating whether similar records for the time and place of the crime are
available; and
„
any evidence that the applicant made “good faith attempts” to obtain the LEA
endorsement and a description of those efforts. 59
A detailed affidavit from the applicant must be included with the petition, and must describe in
depth the circumstances of the trafficking. Suggested issues that should be addressed in the
affidavit are outlined in Part B.
In addition to the applicant’s affidavit, a psychological evaluation is often helpful to clarify
underlying issues regarding the client’s motivation for either taking or failing to take certain
actions. Psychological evaluators may unearth critical information that a client neglects to tell
his or her attorney. This is because frequently a client is too ashamed to disclose such
information to the attorney, but which comes out in the safer space created with a counselor.
Finally, note that a minor involved in prostitution or commercial sex act who is under the age of
18 at the time of filing the T visa application is considered a victim of a severe form of
trafficking. This means that the applicant does not need to identify a trafficker in his or her
affidavit, and is not required to cooperate with law enforcement.
58
8 CFR § 214.11 (f)(2).
59
8 CFR § 214.11(f)(3). See also VAWA Manual, supra note 47, at 5. Fax a request for an investigation to the
U.S. Department of Justice Civil Right’s Division Criminal Section Trafficking Unit at (202) 401-5487 and
retain a copy of the fax confirmation sheet for the T visa application.
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does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
C.
Physically Present
Your client must demonstrate physical presence in the U.S., American Samoa, or Northern
Mariana Islands on account of trafficking. 60 As an emerging area of law, there is no clear
guidance on what it means to be present “on account of trafficking.” The current understanding
is that an applicant is considered present on account of trafficking if he or she is currently held or
recently liberated from trafficking situations. An applicant does not need to be trafficked to the
U.S. in order to meet this requirement. Physical presence may include situations in which the
applicant has been in the U.S. for a period of time and then subsequently trafficked in the U.S.
If a victim has fled or been liberated from a trafficking situation, he or she must establish that
there was no “clear chance to leave” the United States in the interim, in light of individual
circumstances such as trauma, injury, fear, lack of monetary resources or documentation, et
cetera. A victim may also be permitted to remain for purposes of assisting law enforcement. If a
victim leaves and returns to the United States, he or she may no longer be eligible unless they can
establish that the return was the result of continued victimization by traffickers or a new incident
of trafficking. 61
Applicant must be physically present in the U.S. "on account of" trafficking. If the applicant has
made trips abroad, including a brief visit home for family/safety reasons, he or she will need to
document that their return to the U.S. is related to the trafficking. Any departures from the US
should be addressed in the affidavit. Once again, a psychological evaluation may be useful to
uncover and explain the client’s underlying reasons for leaving the country and then returning, as
well as the client’s state of mind and level of fear while he or she was outside the U.S.
D.
Complied With Any Reasonable Request To Assist Law Enforcement
and the Trauma Exception
Adult applicants must cooperate with any reasonable requests for assistance from LEAs and
prosecutors in actions against human traffickers. 62 LEA refers to any federal law enforcement
agency that has the responsibility and authority for the detection, investigation, or prosecution of
severe forms of trafficking in persons. Qualified LEAs include, but are not limited to, the offices
of the Department of Justice, the United States Attorneys, the Civil Rights and Criminal
Divisions, the FBI, USCIS, ICE, United States Marshals Service, and the Diplomatic Security
Service of the Department of State. 63
60
8 CFR § 214.11(g).
61
8 CFR § 214.11(g)(3).
62
Victims of trafficking under the age of 18 do not have to meet this requirement.
63
8 CFR § 214.11(a).
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does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
State and local law enforcement agencies are not currently included within the regulatory
definition of an LEA for purposes of T visas. 64 However, statements from state or local law
enforcement documenting the applicant’s compliance with reasonable requests for assistance are
considered valid secondary evidence. 65 In some cases, states that have passed anti-trafficking
legislation mandate state and local law enforcement agencies to provide such statements to
support the client’s application for a T visa. 66
It is usually best to wait until a criminal case is complete before filing a T visa application. The
filing or approval of a T visa application may be a factor that the defense uses against a
client/witness, or they may use the victim’s statements from the T visa application. If the client
must have an application filed before the criminal case is over (because of age or derivative
issues), the T application may be filed without an LEA, but secondary evidence of cooperation
must be included.
If the client has cooperated with ICE, and especially if he or she has Continued Presence, the ICE
Agent involved in the client’s case will have created an “A file” on the client. When the VSC
adjudicates the client’s application, they will need the “A file.” In the application’s cover letter,
include the name, jurisdiction and telephone numbers for the ICE Agent (in bold format.) In
addition, call the ICE Agent to have him or her send the A file to VSC.
To qualify for a T visa, the applicant must either report the crime or have responded to inquiries
from an LEA. The only exception to this is if the applicant qualifies under the trauma
exception. 67 In fact, the TVPRA of 2005 made it unreasonable for law enforcement to request
a trafficking survivor to assist in the investigation or prosecution of a trafficking crime if the
Secretary of Homeland Security determines he or she is unable to cooperate “due to
psychological or physical trauma.” An applicant who is unable to cooperate with law
enforcement because of psychological or physical trauma is exempt from the LEA endorsement
64
VAWA Manual, supra note 47. As note above, while the TVPRA expanded the definition of qualified LEAs to
include state and local law enforcement, USCIS is not currently implementing this section of the law.
65
While the TVPRA of 2003 permits LEA endorsement to come from state or local law enforcement officials,
current policy as announced by U.S. Citizenship & Immigration Services Associate Director of Operations
William Yates in an April 15, 2004 memorandum is that this provision must wait for further guidance to be in
effect. TVPRA of 2003 § 4(b)(2).
66
New York’s anti-trafficking law, for instance, states: “Upon the request of a human trafficking victim or a
representative of a human trafficking victim, the state or local law enforcement agency or district attorney's
office shall provide the victim with the United States Citizenship and Immigration Service (USCIS) Form I-914
Supplement B Declaration of Law Enforcement Officer for Victim of Trafficking in Persons.” N.Y. Soc. Serv.
Law § 483-dd (2008). Meanwhile, California’s anti-trafficking law states: “Within 15 business days of the first
encounter of a victim of human trafficking, victim pursuant to Section 236.1, law enforcement agencies shall
provide brief letters that satisfy the following Law Enforcement Agency Endorsement (LEA) regulations as
found in Section 214.11 (f)(1) of Chapter 8 of the Code of Federal Regulations,” Cal. Penal Code § 236.2 (a)
(2008), or state law enforcement agencies must “provide the victim with a letter explaining the grounds of the
denial of the LEA.” Cal. Penal Code § 236.2 (c).
67
8 U.S.C. § 1101 (a)(15)(T)(iii) (2006).
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does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
requirement. 68 Evidence from mental health and medical professionals should be submitted to
support a claim of psychological or physical trauma. There is, however, no set standard. Absent
exceptional circumstances, it is reasonable for an LEA to ask of a victim of a severe form of
trafficking in persons similar things it asks of other comparably situated crime victims. The
legislative goals of prevention, prosecution, and the protection of other potential victims may
outweigh your individual client’s concerns.
If the applicant has not had contact with an LEA regarding the trafficking situation, he or she is
required to do so promptly under the regulations. However, prior to contacting law enforcement,
applicants need to be made aware of possible ramifications, such as issuance of a Notice to
Appear (NTA) before an immigration judge, and appropriate strategies to deal with such
ramifications should be discussed. The applicant may contact the Department of Justice, Civil
Rights Division, Trafficking in Persons and Worker Exploitation Task Force complaint hotline, at
(888) 428-7581, and fax a request for an investigation to the Department of Justice Civil Rights
Division Trafficking Unit, at (202) 401-5487, to file a complaint and be referred to an LEA, or
contact a local federal LEA directly. 69 Unfortunately, since the Department of Justice is not
responsive to every call, advocates should document every attempt and every effort to contact law
enforcement.
If law enforcement does not respond to the client’s report of the crime, does not follow through
with a client’s efforts to cooperate, or simply will not provide the I-914B, it is imperative to
document the client’s efforts to cooperate. This is considered “secondary evidence” of
cooperation, and must include:
„
detailed statements in the applicant’s affidavit explaining each and every attempt to
cooperate, including dates, places, and names/positions of law enforcement contacted. It
should also note why I-914B is unavailable; and
„
good faith attempts to obtain the I-914B, including what efforts the applicant undertook
to accomplish these attempts. Evidence of efforts to obtain the I-914B should be attested
to by the client, not by the attorney.
Other evidence may include:
68
69
„
a copy of attorney’s log of telephone calls, faxes, and emails to law enforcement
(including time/date stamp) or memoranda to the file documenting meetings or
conversations with law enforcement;
„
affirmation by attorney of efforts to cooperate; and
„
if cooperation was with state or local law enforcement, provide a detailed letter
describing contact with client, the conversations, et cetera.
8 U.S.C. § 1101(a)(15)(T)(iii). See also 8 CFR § 214.11(a).
8 CFR § 214.11(f)(4).
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legal advice. Transmission of these materials is not intended to create, and receipt
does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
NOTE: General assertions from an attorney are not considered to be evidence for law
enforcement purposes. Therefore, relevant copies of letters, e-mail, or any other documentation
of the attempted communication with the law enforcement agency, as well as responses from law
enforcement, should accompany the statement from the attorney. It is important to note that
photocopies of an email submitted generically to law enforcement would not be sufficient.
Ultimately it is the USCIS, not the LEA, that determines whether or not a request for assistance is
reasonable for the T visa determination purposes. In making such a determination, the Service
takes into account the “totality of the circumstances” including, but not limited to
„
general law enforcement, prosecutorial, and judicial practices;
„
the nature of the victimization;
„
the specific circumstances of the victim;
„
including fear, severe trauma (both mental and physical); and
„
the age and maturity of young victims. 70
In light of these requirements, on behalf of your client, you should contact law enforcement if it
appears that they will be eligible for the T visa, and to determine how your client can assist law
enforcement in anyway that does not put them in direct danger, or that will not result in severe
emotional trauma.
E.
Suffer Extreme Hardship Upon Removal Involving Unusual
and Severe Harm
Unlike other types of immigration relief, a T visa applicant must establish “extreme hardship
involving unusual and severe harm upon removal,” as opposed to “extreme hardship.” This
elevated standard requires the consideration of an aggregate of factors, which are defined by the
regulations. These include, but are not limited to
70
„
the applicant’s age and personal circumstances;
„
serious physical or mental illness of the applicant that requires medical or psychological
attention not reasonably available in the foreign country;
„
the physical and psychological consequences of the trafficking activity;
„
the impact on the applicant of loss of access to U.S. courts and criminal justice system for
purposes such as protection of the applicant and criminal and civil redress for the acts of
trafficking;
8 CFR § 214.11(a).
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does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
„
the reasonable expectation that laws, social practices, or customs in the applicant’s
country would penalize the applicant severely for having been the victim of trafficking;
„
the likelihood of re-victimization and foreign authorities’ ability and willingness to
protect the applicant;
„
the likelihood that the trafficker or others acting on his or her behalf would severely harm
the applicant; and
„
the likelihood that the applicant’s individual safety would be seriously threatened by the
existence of civil unrest or armed conflict, as demonstrated by a designation of,
Temporary Protected Status under INA § 244 or the granting of other relevant
protections. 71
Factors relating to extreme hardship need not be related to the trafficking experience. Therefore,
if a client has medical or other issues that cannot properly be addressed in his or her country of
origin, such issues should be made clear in the application. While economic need is not
considered relevant for extreme hardship consideration, if economic issues are likely to lead to a
client being re-trafficked upon his or her return to the country of origin, that is a relevant
concern. 72
The T visa application requires evidence of these factors. Examples of evidence which may be
used to demonstrate hardship include:
„
a detailed declaration from the victim, declarations or statements from witnesses;
„
law enforcement reports, including the LEA endorsement, photographs, medical records,
reports and records from counselors or therapists; and
„
reports from Non-Governmental Organizations (NGO), government and international
agencies, and individuals regarding the current conditions in the home country 73 and the
protection or lack of protection likely to be afforded the applicant in the home country. 74
71
8 CFR § 214.11(i).
72
Id.
73
The most persuasive report on country conditions are those prepared by the United States government,
specifically the Victims of Trafficking and Violence Protection Act 2000: Trafficking In Persons Annual
Report, prepared by the Department of State, available at www.state.gov/g/tip/rls/tiprpt/. Other sources
include: www.amnesty.org, www.antislavery.org, www.asylumlaw.org, www.childtrafficking.com,
www.hrw.org, and www.protectionproject.org.
74
VAWA Manual, supra note 44.
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does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
III.
Special Considerations
A.
If Your Client is a Child
If your client is a child, he or she may not be required to establish all of the aforementioned
factors in order to be eligible for the T visa.
1.
Establishing Coercion
Children under the age of 18 trafficked for commercial sex purposes do not have as high of an
evidentiary burden. As previously mentioned, victims of “severe forms of trafficking in persons”
include:
„
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. 75
Accordingly, a child under the age of 18 who has been a victim of sex trafficking is not required
to show evidence that he or she was induced by force, fraud, or coercion. 76 However, a child
under the age of 18 who is recruited for labor trafficking or other services is required to show
inducement through force, fraud, or coercion as indicated earlier in this document.
2.
Reasonable Request to Assist LEAs
Another T visa eligibility factor affected by age is the requirement to assist law enforcement and
in the prosecution of traffickers. Children under 18 are not required to assist law enforcement. 77
Regardless of the purpose for which the victim was recruited, a child age 18 and older can be
required to comply with all reasonable requests. The age, maturity, and individual circumstances
of each victim may be considered to determine the reasonableness in “the totality of the
circumstances.” 78
75
TVPA § 103(8).
76
8 CFR § 214.11(f).
77
8 CFR § 214.11(d)(vi).
78
67 Fed. Reg. 4783, 4788 (2002).
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does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
3.
Hardship Upon Removal
The age of a child may be taken into account when making determinations of hardship. 79 Again,
children are recognized as being in a special circumstance since it is understood that they are not
in control of their situation, nor are they legally recognized as being able to consent to a
contractual relationship. The trauma faced by children can be exacerbated if appropriate
interventions are not available in the home country, or if the family played a part in their
trafficking. ORR has a mandate to provide care and appropriate placement, including shelter, for
trafficked children.
Children’s advocates have also urged that three fundamental principles should guide agency
decision-making involving victims of trafficking:
1. The best interest of the child standard;
2. The placement of the child in the least restrictive setting; and
3. The child’s need for permanence. 80
Evidence offered to establish “severe hardship involving unusual and severe harm” upon removal
for children should incorporate these principles. Special attention should be given to the
treatment of, and benefits available to, victimized children in the country of origin. Country
specific stigmatization of street children, orphans, and sexually abused children also may be
compelling factors to consider.
4.
Benefits
In order to receive humanitarian benefits, similar to those available to refugees, victims age 18
and older must be certified by ORR. As noted above, this letter is issued either pursuant to a
grant of continued presence, recognition by USCIS that a T application is bona fide, or approval
of the T visa. If a child has not applied for the T visa, he or she must obtain a letter from an LEA
confirming that he or she is a victim of a severe form of trafficking. Children under 18 are then
issued eligibility letters. 81 This present system seems unduly burdensome, particularly as
79
8 CFR § 214.11(i)(1)(i).
80
See Letter to Anne Veysey, Recommendation for T Implementation in Relation To Children, Lutheran
Immigration and Refugee Service, September 7, 2001; Also based on conversation between Christa Stewart,
Director of Legal Services, The Door, and Antoinette Aqui, Program Analyst - Trafficking, ORR, November
19, 2004.
81
TVPA §107(b)(1)(E). See also, ORR State Letter #O-13, Issued by Acting Director, Carmel Clay Thompson,
May 3, 2001 available in Human Trafficking: A Resource Guide to U.S. Law, Legal Aid Foundation of Los
Angeles, June 2004. (www.lafla.org/clientservices/specialprojects/traffic.asp)
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children are not required to be certified as victims, nor do they have to cooperate with law
enforcement. 82
B.
1.
Derivative Family Members
General Application
A T visa applicant over 21 can include as derivative applicants his or her spouse and unmarried
children under the age of 21. 83 A T visa applicant under 21 at the time of filing may include the
spouse, children, parents, and unmarried siblings under the age of 18. 84 An I-914, Supplement A,
must be included for each derivative family member, and included with the Supplement A should
be documentation of the derivative’s relationship to the principal applicant, including birth and/or
marriage certificates. If represented by counsel, a separate G-28 should also be included.
A T visa applicant or holder may chose to apply for derivative family members later. If they do
not include the derivatives in their initial application, they must refile the I-914 form along with
an I-914A for each family member. It is not necessary to include all of the attachments. You
should include a copy of the T approval notice and explain in a cover letter that they are now
applying for derivative family members. T visa holders can apply for their derivatives at any
time during the duration of their status. However, once they adjust their status to permanent
resident, they must follow the regular family petitioning process.
There are currently no filing fees for derivatives who apply in the United States. However,
derivatives that live abroad may need to pay a biometric fee at the consular post. 85 Derivatives
presently in the U.S. are eligible to apply for employment authorization, while derivatives abroad
may apply for employment authorization after they enter the U.S. in derivative T status.
Derivatives do not need to establish extreme hardship. 86
Family members implicated in the trafficking scheme may not apply for derivative status. 87 If
there are concerns of such involvement, the derivative application must demonstrate that he or
she did not commit the trafficking against the applicant which forms the basis of the applicant’s T
visa application. 88 In addition, as with the applicant, advocates should examine whether
82
Id.
83
8 CFR § 214.11(o)(1).
84
The ability of unmarried siblings under 18 years of age to apply was added by TVPRA of 2003 § 4(b), which has
not yet been codified.
85
Please check www.uscis.gov for the most up-to-date filing fees. Biometrics fees may vary by country or
consular post, and may be waived in certain circumstances.
86
TVPRA of 2005 § 801(a)(2). See also 8 U.S.C. § 1101(a)(15)(T)(ii). For a more detailed description of
“extreme hardship” please review the section on “extreme hardship” in Part A.
87
8 U.S.C. § 1154 (a)(1)(L) (2006).
88
TVPRA of 2005 § 106(e). See also 8 U.S.C. § 1154(a)(1)(L).
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derivative applicants face inadmissibility issues, such as unlawful presence, issues around
unlawful entry, or prior criminal convictions. If such is the case, it may be necessary to file form
I-192 and relevant fees to request a waiver of inadmissibility.
2.
Consular Processing of the T Visa
Derivatives living abroad will need a valid passport or a waiver of the passport requirement in
order to enter the U.S. in T status. Such applicants will undergo a detailed interview at the
appropriate consular post. The derivative should not be asked about the underlying trafficking of
their family member and is not required to know the details of their relative’s experience. The
only relevant questions should be to confirm the relationship with the principal applicant. If there
are questions about the veracity of a derivative blood relationship to the principal applicant, the
consular post may require a DNA test.
Practice point: When the derivative application is approved, email a copy to the U.S. Embassy or
consulate that has jurisdiction. Include the approval notice, G-28, current address and telephone
number for the derivatives. Request the scheduling of an appointment to process the derivative’s
visa. Consular email addresses can be found at www.usembassy.gov.
In addition, the International Organization for Migration (IOM) may be able to assist with the
travel logistics to bring derivatives to the U.S.
3.
Derivative Children
Derivative children may need the consent of both parents in order to obtain a valid passport in
their home country. Obtaining passports for children of trafficked persons can pose a number of
obstacles. This is particularly the case when the trafficked person is not in contact with the
child’s second parent, or if the second parent is abusive. Many times, the second parent is the
trafficker, and this may necessitate legal proceedings in the home country to obtain a passport for
the child. In addition, custody of derivative children may need to be addressed before the child
can lawfully be brought to the U.S. If the second parent has parental rights over the child, then
his or her parental rights might have to be severed through the courts in the home country before
the child can be brought to the U.S.
Issues relating to passports and custody may significantly delay, or in some cases preclude,
issuance of a T visa to the derivative child. This is because the consulate will not issue the visa
once the principal applicant’s period of T status has expired. The maximum amount of time an
individual can be in T status is four years. If custody or other proceedings take longer, the child
may have to wait for the principal applicant to become a permanent resident before they can enter
the U.S.
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C.
Representing Trafficking Victims in Immigration Court
An applicant in removal or deportation proceedings poses special challenges. The applicant must
inform USCIS if he or she intends to apply for a T visa. 89 The Immigration Judge (IJ) must agree
to stay the court’s master calendar to allow sufficient time for the adjudication of the T visa. This
may necessitate educating both the IJ and the trial attorney about the T visa and convincing them
that the applicant is eligible. If they agree, both the IJ and the trial attorney should be provided
with copies of the T visa application and all supporting documentation.
If the application is approved, the IJ may terminate the proceedings or alternatively,
administratively close the proceedings. This would allow the applicant to apply for adjustment of
status with USCIS. 90 If the applicant had a final order of removal or deportation from the past, an
approved T visa will cancel the final ordered by operation of law as of the date of the approval. 91
If, however, the T visa application is denied, the stay of the final order is deemed lifted as of the
date of the denial, without regard to whether the applicant appeals the decision. 92
Practice Point: The length of time it takes to adjudicate a T visa should be a factor in discussing
an application with a detained client. He or she can continue to be detained for a period of
months or even years with this process.
IV.
After Issuance of T Status
A.
Employment Authorization
The Employment Authorization Document (EAD) issued to the T recipient should be for the full
three year period, allowing for a one year extensions. 93 If the EAD is not granted for the full
period, an extension can be filed along with Forms I-765 and G-28 (if represented by counsel),
two passport photos, and appropriate filing fee (or fee waiver). Eligibility classification for the T
status holder should be indicated under (a)(16).
Derivatives of T status holders can also obtain work authorization. Form I-765 should be
submitted with the I-914 Supplement A. Also included should be Form G-28 (if represented by
counsel), two passport photos, and appropriate filing fee (or fee waiver) should be submitted.
Eligibility classification for the derivatives of T status holders should indicate I(25).
89
8 CFR § 214.11(d)(8).
90
Id.
91
8 CFR § 214.11(d)(9).
92
Id.
93
8 CFR § 214.11(l)(4) noting that “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.” (emphasis added).
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Travel Overseas 94
B.
T status holders can only travel using Advanced Parole. Advanced Parole is a travel document
that eliminates the need for a visa stamp in the passport. Instructions for submitting the advance
parole application are included within the text of the T approval notice. These instructions note
that all T status based advanced parole petitions should be filed at the VSC. An application for
advanced parole is made by submitting form I-131 accompanied by form G-28, if represented by
counsel, two passport photos, and appropriate filing fee (or fee waiver).
Overseas travel raises a number of concerns, and advocates may want to err on the side of caution
given the serious consequences at issue, and consider advising clients against overseas travel:
„
C.
If the T holder accrued “unlawful presence,” 95 departure from the U.S. may trigger a
three or ten year bar to future immigration benefits in the U.S. 96 Note that a T holder’s
prior unlawful presence will not preclude him or her from receiving advance parole, nor
will it impede his or her re-entry into the U.S. However, when the T holder applies for
adjustment of status, the adjustment may be denied, the T holder issued an NTA, and
possibly removed from the U.S.
„
In order to be eligible to “adjust status to a permanent resident” following three years in T
status, the T holder must demonstrate continuous physical presence in the U.S. 97
According to the TVPA, “an alien shall be considered to have maintained continues
physical presence…if the alien has departed from the United States for any period in
excess of 90 days or for any periods in the aggregate of 180 days.” 98
„
If the T holder returns to the country from which they were trafficked, it may undermine
the hardship concerns that will be revisited when the adjustment of status is adjudicated.
Adjustment of Status to Permanent Residency
Those approved for T-1 can adjust their status to that of permanent resident (“LPR” or “green
card”) by filing Form I-485, Form G-325, with all supporting documents to the T Visa Unit at the
VSC. 99 As long as the applicant applies, those in derivative T status may also apply to adjust
their status. Up to 5,000 principal T visa holders may be adjusted to permanent residents each
year. 100 However, to date, USCIS has not promulgated regulations implementing the adjustment
94
This section is based on a series of emails between Mie Lewis, attorney, Asian Pacific Islander Legal Outreach,
and Rebecca Story, associate general counsel, Department of Justice dated July 30, 2004 and August 2, 2004.
95
Discussed at length in Part A, section I.b.1 “Immigration Status.”
96
INA § 212(a)(9)(B).
97
TVPA § 107(4)(f)(1)(A).
98
TVPA § 107(4)(f)(2)(B)(2).
99
INA § 245(l).
100
INA § 245(l)(4).
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does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
of status provisions, and as a result, none of the adjustment of status petitions on behalf of T
holders have been adjudicated.
The statutory provisions for a T visa holder to adjust status are if he or she
„
was physically present in the United States in T status or physically present in the U.S.
during the investigation and prosecution of the trafficking case and the Attorney General
indicates that the processes is complete;
„
is of good moral character; and
„
has complied with any reasonable request for assistance in the investigation or
prosecution of acts of trafficking or would suffer extreme hardship involving unusual and
severe harm if removed. 101
According to INA § 245(l)(3), an alien shall be considered to have failed to maintain continuous
physical presence if he or she has departed the U.S. for any period in excess of 90 days or for any
periods in the aggregate exceeding 180 days.
Please note that there is a very small window for filing for adjustment of status. Although T
status can be extended for up to four years, applications for adjustment of status must be
submitted within the 90 day period immediately preceding the third anniversary of the T visa
approval or when the investigation is complete, whichever is earlier. 102 USCIS may notify T
visa holders that they are eligible for adjustment of status, but this has not actually occurred. The
burden is on the applicant to apply for adjustment in a timely fashion.
Regardless of whether the notice is issued, if T holders do not file for the adjustment of status
during that window, their status will be terminated. 103 As such, it is imperative that advocates
and T holders do not rely solely on USCIS’ issuance of such notice, but carefully track these
dates as well. 104
Once the adjustment of status is properly filed, the T holder will be considered as continuing in T
status, including continuing eligibility for employment authorization. 105
We have been filing for adjustment of status immediately after the grant of a T visa if there never
was an investigation. We have also filed after a grant of a T visa when the investigation is
101
102
INA § 245(l)(1).
8 CFR § 214.11(p)(1). See also § 821 of TVPRA 2005, which amends the Act to allow status for up to four
years.
103
8 CFR § 214.11(p)(2).
104
Although, if such notice was not given, one could argue that USCIS failed to meet their own regulatory
standards.
105
8 CFR 214.11(p)(2).
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complete. To date, these applications have been accepted and remain pending. Employment
authorizations can then be issued under the category of adjustment pending. However, this leaves
T visa holders who have exceeded the four years of T status with no proof of their status.
V.
Industries Where Victims are Predominantly Found
Provided below are examples of industries that are most commonly associated with trafficking
victims. This is in no way a comprehensive list, but merely a reference tool as well as a possible
flag for identifying potential victims. For each of these categories, please note a brief fact pattern
to provide further guidance in the identification process.
A.
Factory Workers
One of the most well-known trafficking cases is the following. At the Korean-owned Daewoosa
factory in American Samoa, 251 Vietnamese “guest workers” – more than 90 percent of them
women – were held for nearly two years, under conditions of indentured servitude sewing
clothing for J.C. Penney, Sears and Target. The labels read, “Made in the USA” since American
Samoa is a U.S. territory. However, the women were not even paid the already very low $2.60 an
hour minimum wage in Samoa. The women were beaten, sexually harassed, threatened with
deportation and imprisonment, starved, forced to work 12 to 18 hours a day, seven days a week
when rush orders came in, and to live in crowded rat-infested dormitories. The U.S. Department
of Labor has assessed the Daewoosa factory a total of $604,225 in back wages and fines.
B.
Migrant Workers
Pedro came to the U.S. on an H-2A visa to work as a fruit harvester for a large farm-labor
contractor. When he was recruited, the company said that he would receive the federal-mandated
rate of pay for farm workers (which is higher than the minimum wage), housing, and
transportation. Although he was a monolingual Spanish speaker, he had to sign a contract that
was written in English. Upon arriving in the U.S., the contractor took his passport and other
identification documents; the contractor explained that they needed to do this since other workers
had walked off the job. Pedro worked 12 hours a day, seven days a week. He was not paid even
the minimum wage, and he was not paid in a timely manner. He was not allowed to take meal
breaks, and passed out on at least four occasions during work hours from dehydration. He was
not allowed to see a doctor and instead was told to return to work. Pedro slept in a trailer with
nine other men, and had to do his laundry in the sink. As an H-2A visa holder, he was legally
bound to this contracting company or he would have to return to Guatemala. Pedro felt like he
had little recourse to complain about the working conditions.
C.
Domestic Workers
Ami was brought to the U.S. from India to work as a nanny for a family in New York. She was
promised a wage four times greater than what she would earn in India. She was told that she
would be treated like a family member. When Ami arrived, she was required to work 15-17
hours a day, cooking, cleaning, and doing laundry for the entire family, as well as childcare. She
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was forced to sleep on the floor and her documents were withheld. She was told that if she went
outside without permission or telling her employers when she would be back, she would be
arrested on the spot. For three years of work, she was never paid.
When Ami finally asked to leave the house to attend church, which she had been denied for three
years, she was thrown out of the family home. An Indian nanny in the building helped her find a
place to stay. However, Ami was worried about her legal status, and that she would be deported
since she no longer had a valid visa. With the help of a community-based organization whose
members spoke her language, Ami reported her traffickers to the police, the FBI, and to DOJ.
After numerous calls to law enforcement advocating the merits of the case, DOJ was interested in
investigating the case, and decided to interview Ami to evaluate the case and determine if she
might be a credible witness.
D.
Household Employees of Diplomats
Teresa was a young woman working as a nanny in her home country in Latin America. The
family she worked for were diplomats, and when the husband was posted to the United States, the
family asked her to accompany them in the same capacity. Teresa was reluctant to leave her
home and her own family, but her employers promised her education, English lessons, and
increased wages. On this basis, Teresa agreed and came to the United States. Once here, she was
required to sleep on the kitchen floor, to work fourteen hour days, was paid only rarely and far
less than what was agreed, and was not allowed to leave the apartment. She was also continually
verbally abused and threatened with deportation if she complained. A friend of the employer’s
witnessed the situation, and contacted ICE who rescued Teresa from the situation, and referred
her to a social service agency. However, since the traffickers were diplomats, no prosecution was
ever pursued because of diplomatic immunity. Moreover, the ICE agents involved in the
“rescue” were reluctant to provide the LEA certification, but did so after continuous requests.
Teresa is now resettled in the U.S. in T status.
E.
Restaurant Workers
When Li was sixteen, a man came to his village recruiting young men for jobs in the U.S. He
told Li that he could make a lot of money to send home to his parents. Since Li’s parents were
getting older and there were no jobs available in the village, Li decided to take this opportunity.
His parents scraped together their savings to pay the man. Li was advised that he would then
have to pay a balance of $20,000 after he arrived.
Li traveled with six other young men. He was given travel documents to pass through
checkpoints in Korea and Canada, but after he cleared each of the checkpoints the papers were
taken away. Once he arrived in Canada, Li was held in captivity for twenty days where he was
deprived of food, threatened, and interrogated about his extended family. When he finally
reached the U.S., he was allowed to live with his uncle in San Francisco. However, he was
forced to work seven days a week, fourteen hours a day for the traffickers, who kept most of his
salary. In addition, the traffickers often asked him to perform criminal activity, and threatened
his family if he does not agree. Recently, the traffickers threatened his parents in China.
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Identification and Legal Advocacy for Trafficking Survivors
F.
Sex Workers
Susanna and Penelope are two adolescent girls who were trafficked into the United States from a
South American country and forced into sex work. The trafficker lured them to the U.S. by
claiming he could get them jobs. He also told one of the girls that he would reunite her with her
mother, who was already in the U.S. The trafficker created personal relationships with these
girls, thus earning their trust. For example, he told Susanna and her family that he wanted to
marry her, and acted as a boyfriend, while he created a platonic “older brother” friendship with
Penelope. Ultimately, he sexually assaulted both girls and forced them to work against their will
in a brothel. Susanna and Penelope were resourceful enough to escape from him one night, and
made contact with the local police. Both were under the age of 18, meaning that they were not
required to cooperate with a reasonable request from law enforcement in order to qualify for a T
visa. However, they are now choosing to cooperate with law enforcement in the prosecution of
their trafficker.
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[DO NOT REMOVE THIS PAGE BREAK]
308
Part B: Preparing The T Nonimmigrant Visa
Application Package
I.
The Basics of the Application
Victims of severe trafficking may apply directly to the USCIS for T status. While the TVPA
recognizes trafficking protection as a humanitarian type of immigration status, it is classified as a
non-immigrant visa. A petition is made by submitting Form I-914 (with Form G-28 designating
the representative or counsel) along with supporting documentation to the VSC. 106 If filing a fee
waiver, that request should be filed concurrently with the I-914. 107
The basic application package should include: 108
„
Biometric filing fee or fee waiver request (form EOIR-26 is acceptable for fee
waiver); 109
„
three passport photographs of the applicant; 110
„
duly signed and executed Form I-914;
„
duly signed and executed form G-28 (on blue paper);
„
duly signed and executed Form I-192, waiver of inadmissibility (if appropriate);
„
evidence supporting the claim (including a personal statement/affidavit);
„
country condition reports and any other objective evidence supporting the claim;
106
U.S. Citizenship and Immigration Services, Vermont Service Center, 75 Lower Welden Street, St. Albans, VT
05479-0001. “T Visa Application” should also be written in bold on the application package.
107
These forms can be downloaded off the internet, available at www.uscis.gov. It is important to use the most
current version of the forms, which are updated often.
108
See 8 CFR § 214.11(d)(2).
109
USCIS filing fees are subject to change, so the biometric fee should be verified before submitting. If the
incorrect fee is submitted, USCIS will reject the application. As of the date of this manual’s publication, the
biometric fee is $80.00 per individual between the ages of 14 and 79. Biometrics include fingerprinting to
facilitate background checks. The biometrics fee may be waived. Applicants are notified of the time and
location for the fingerprinting at the Application Support Center (ASC).
110
Standards for the photographs can be found at
www.travel.state.gov/passport/pptphotos/composition_checklist.html.
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„
„
a supporting letter, brief, or memorandum of law establishing the criteria for T status:
o
that the applicant is a victim of a severe form of trafficking in persons;
o
that the applicant is physically present in the United States on account of the
trafficking; and
o
that the applicant would suffer extreme hardship involving unusual and severe
harm if he or she were removed from the United States. 111
a cover letter acting as a roadmap to the evidence included. 112
II.
Preparing and Drafting the T Visa Application Package
A.
Completing the Forms
1.
The G-28
The G-28 is the notice of appearance that an attorney or representative of a religious,
charitable, social service, or similar organization is designated as the representative on
behalf of a person involved in a matter before the USCIS. There is no filing fee
associated with the G-28, but USCIS prefers that it is on light blue paper so it stands out.
2.
The I-914
Part A. Purpose
Generally check the first box “I’m filing an application for T-1 nonimmigrant status, and
have not previously filed for such status.”
Part B. General Information
„
Be sure to answer each question correctly. Verify with actual documents when
filling out this form. Do not assume same or similar data from other applicants.
„
Make sure to put dates in the U.S. format (Month/Day/Year) as opposed to the
European format (Day/Month/Year) followed by many countries.
„
Safe Mailing Address: This is the address to which USCIS will send notifications.
It is a good idea to include the advocate’s address to ensure that the case is properly
processed.
111
8 CFR § 214.11(d)(2)(vii).
112
“T VISA APPLICATION” should be noted in red marker in the upper right-hand corner of the first page of the
cover letter to make sure that the packet is properly routed by the USCIS mailroom.
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„
Date and Place of Last Entry into U.S. should be taken from the current I-94 card,
or stamp in the passport. If neither passport nor I-94 is available, make an estimate
and note on the form that it is an estimate.
„
Passport Information: If passport is not available, write “N/A.”
„
Current USCIS status 113
o
Check client’s current I-94 card (this will usually be a white card stapled into the
passport). It is the I-94, and NOT the visa stamp in the passport, that denotes
status and authorizes length of stay. The individual’s status is noted by a letter
(usually “B-1 or B-2” or “A-3” or “G-5”) and the expiration of that status is
noted below.
o
If the client has been granted Continued Presence (evidenced by the ORR
Certification Letter), the status is likely “Deferred Action” or “Public Interest
Parole.”
o
If the client has not yet been granted Continued Presence and does not have an I94 because he or she crossed the border without inspection, note “EWI” (for
Entered Without Inspection) and consult an immigration attorney with trafficking
experience before filing. 114
o
If the client entered and the status has since expired, and has not yet been granted
Continued Presence, write status type and date of expiry. 115
Part C. Details Related to T Nonimmigrant Status
Q1, 3, 4. Check all boxes “Yes.”
Q2. If you do not have an LEA endorsement from a federal agency on form I-914
Supplement B, check “No” and attach secondary evidence of cooperation with law
enforcement. If I-914 Supplement B is enclosed, or if you were advised that such
LEA endorsement would be sent to USCIS, check “Yes” and list the information in
response to Question 5. A Federal Law Enforcement Agency (such as the
USCIS/ICE, FBI, DOL, or DOJ Civil Rights Division) must be contacted prior to
submitting the T application.
Q6. Applicant is Under 18 as of the date of filing the application.
113
Filing a petition for someone who is not eligible could result in a “Notice to Appear” (NTA) before an
immigration judge (IJ) and subsequent removal (deportation) from the United States.
114
Form I-192 should be filed to waive any and all grounds of inadmissibility.
115
Id.
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Q7. Note if there was compliance with requests for investigation or prosecution
Q8. First Visit to the U.S. Include all entries to the U.S., even if prior visits were
made unlawfully, but consult an immigration attorney prior to filing if applicant has
made prior unlawful entries.
Q9. Entry on Account of Trafficking. Check “Yes.”
Q10. Employment Authorization. Check “Yes.” No additional form or fee is
required.
Q11. Applying for Eligible Family Members. Answer “Yes” if a Supplement A
for a spouse, child(ren), and/or parent(s) is included. If there are no qualified family
members, or if the applicant will file for them at a later time, check “No.”
Part D. Processing Information
These questions are to determine “admissibility,” a legal standard required for all foreign
nationals applying for a legal status to either enter or extend their stay in the U.S. It is
also very important to the ultimate “green card” application. Be sure to answer truthfully
to each question, especially questions about criminal conduct in the U.S. If the answer to
ANY of the questions is “Yes,” the applicant will have to file an I-192 Waiver. 116
Q1. Criminal History. This may include prostitution, even if it was forced. You
may want to check the immigration regulations and statutes to make sure that the
applicant’s admission to a criminal act does not permanently bar immigration
benefits.
Q2. Public Charge. Pursuant to the Trafficking Victims Protection Reauthorization
Act of 2003, Pub. L. 108-193, § 4(b)(4) (codified as amended at 8 U.S.C.
1182(d)(13)), receiving cash assistance from the U.S., state, or local government is
no longer a grounds of inadmissibility for the T visa and does not necessitate the
filing of an I-192.
Q3, 10, 11, 12, 13, 15. Answering yes to these questions should not bar T visa
issuance, but consult an immigration attorney to make sure that the applicant is
eligible for a waiver. Filing an application for someone who is not eligible could
result in he or she being placed in “deportation” or “removal proceedings” before an
immigration judge.
Q4, 5, 6, 7, 8, 9, 14. If the applicant answers “Yes” to any of these questions, a I-192
waiver may be more difficult to obtain. The specific circumstance surrounding the
issue should be carefully evaluated, and an attorney or advocate with expertise in the
field should be consulted. Answering “Yes” to these questions can seriously
compromise eligibility for the T visa.
116
Fee waiver and RFE issue
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Part E. Information about Family Members
Include information about the spouse and/or child(ren), even those that applicant is not
currently seeking to bring in. Applicants who are under 21 years old can also include
their parents and unmarried siblings under 18 years of age on the date that T application
is submitted. Form I-914, Supplement A and appropriate fee should be included for those
qualifying family members who will join applicant.
Part F. Attestation and Release
Signature by the applicant certifying that everything is true and correct under penalty of
perjury, and that the applicant understands that the USCIS can and will use the
information in the application against the traffickers and share this information with other
government agencies.
Part G. Certification
Should be completed by attorney or advocate who assisted in the preparation of the
petition. This is a normal part of any immigration petition or application.
3.
The I-914, Supplement A
Note: A separate Supplement A and filing fee must be included for each family member
being sponsored. A separate G-28 should also be included to ensure the attorney or
advocate receives notification. Derivatives who are applying from outside the U.S., will
undergo an interview at the appropriate consular post. However, they are not required
to know the substance of the underlying T visa application. Attorneys should examine
whether derivative applicants face inadmissibility issues, such as unlawful presence,
issues around unlawful entry, or prior criminal convictions.
Part A. Relationship
Check the appropriate relationship. Note that parents and unmarried siblings under the
age of 18 can only be included if the applicant is under 21 at the time of filing. Note that
the form has yet not been amended to include unmarried siblings.
Part B. Information about the main applicant.
If the Supplement A is filed together with the original I-914, check “Submitted” for the
last question in this section. Otherwise, check the relevant box and include appropriate
evidence of that status.
Part C. Information about Derivative Applicant
Be sure to answer all questions. Answer “None” or “N/A,” but do not leave blanks. The
questions regarding ‘Immigration Proceedings’ refers to Deportation or Removal
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Proceedings, only. Check “Yes” only if the Family Member has been ordered to appear
before an Immigration Judge in the U.S.
Part D. Processing Information
As with Part D on the Form I-914, these questions are to determine “admissibility.” Be
sure to answer truthfully to each question. If the answer to any question is “Yes,” consult
an immigration attorney to determine eligibility for a waiver and/or risk of deportation
or removal.
Part E. Attestation and Release
This is the same as Part F on the Form I-914. If the family member is in the U.S., he or
she should sign. If the family member is NOT in the U.S., only the applicant needs to
sign.
Part F. Certification
The same as Part G on Form I-914.
Application for Employment Authorization:
Derivatives of T status are eligible for employment authorization when they are inside the
U.S. To obtain employment authorization, derivatives must file form I-765 accompanied
by form G-28, if represented by counsel, two passport photos, appropriate filing fee, and
indicate on the form I-765 eligibility under (c)(25). Such employment authorization
should last for the duration of the T-1 nonimmigrant status. 117 File for derivatives after
they arrive in the U.S. if they were not present at the time of the initial application with
the Vermont T Visa Unit. If they are present in the U.S. at the time of the initial
application, an I-765 for the derivative can be sent in at the same time as the I-914.
4.
The I-914, Supplement B
„
„
This is the official “Law Enforcement Attestation,” also referred to as the “LEA”
endorsement. If included with the application, it can serve as the primary evidence
for all elements, except extreme hardship.
The LEA endorsement must be from a qualified federal agency. 118 At present, it
cannot be from state or local law enforcement 119 (although such documentation may
be credible “secondary evidence”).
117
8 CFR § 214.11(o)(10).
118
8 CFR § 214.11(e). Qualified federal agencies include, but are not limited to, the offices of the Department of
Justice, the United States Attorneys, the Civil Rights and Criminal Divisions, FBI, USCIS, ICE, the United
States Marshals Service, and the Diplomatic Security Service of the Department State.
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does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
5.
„
Keep close track of all attempts to obtain the LEA endorsement - including phone
and fax log, email copies, and letters.
„
In pursuing the LEA endorsement, attorneys/advocates may want to draft the LEA
endorsement to ensure that it addresses all of the legal elements directly. This can be
an extremely powerful document if it provides thorough and complete information
and is free from contradictions.
The I-192 120
It may be necessary to file this form if any of the answers were “Yes” to Form I-914, part
D. However, because there is a non-waiveable filing fee of $545 for each applicant, and
because this fee is often unobtainable for many victims, VSC has agreed to preliminarily
review the application to determine if an I-192 is necessary.
If VSC determines that the I-192 should be filed, it will send the attorney of record (as
evidenced by the G-28) a Request for Evidence (RFE). The RFE will provide a specific
timeframe during which the I-192 must be submitted. If an I-192 is requested, note that
two copies per applicant should be included.
Completing the form
Q1-6. are self-explanatory.
Q7. Desired Port of Entry into U.S. Enter “Vermont Service Center” and the city
of the nearest District Office. For example: “VSC/New York, NY”
Q8. Means of Transportation. Enter “N/A.”
Q9. Proposed Date of Entry. Enter the date on which you are filling out the form.
Q10. Approximate Length of Stay in the U.S. Enter “Indefinite.”
Q11. My Purpose for Entering the U.S. This will most likely be either:
“To serve as a witness in a criminal trafficking case.” or
“To cooperate with law enforcement against traffickers.”
119
As noted in Part A, the TVPRA does provide that LEA endorsements may be submitted by state or local law
enforcement officials. However, current policy as announced by U.S. Citizenship & Immigration Services
Associate Director of Operations William Yates in an April 15, 2004 memorandum is that this provision must
wait for further guidance to be in effect.
120
Even though the applicant may be physically in the United States, in order to permit them to be “entered” into a
legitimate status, the I-192 must be filed.
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Q12. I Believe I May be Inadmissible. List the issues to which applicant
answered “Yes” to in Part D of the I-914. Consult someone with expertise in
this area to make sure the ground is eligible for a waiver. 121 The most common
may be:
o “Receipt of public benefits as a Certified Trafficking Victim;”
o “Entered the U.S. on a fraudulent visa;”
o “Since entering the U.S. I violated my non-immigrant status;,”
o “I was forced to work as a prostitute;”
o “I entered the U.S. without inspection;” and
o “I was arrested for [prostitution] as a result of my trafficking situation.”
Q13. This question is asking if the applicant has filed this form before. For most, if
not all, the answer will be “have not previously filed.” If the applicant has never
applied to enter the U.S. before, the answer is certainly “have not previously filed.”
Q14. The applicant should sign and date the form.
Q15. Should be completed by attorney or advocate who assisted in the preparation of
the petition. This is a normal part of any immigration petition or application.
6.
EOIR-26A “Fee Waiver Request”
„
121
Fee waivers are available at the sole discretion of the USCIS. 122
„
Form EOIR-26A (which is normally filed with the immigration court under the
“Executive Office of Immigration Review” can be used for this purpose). 123 Make a
note in the cover letter that the filing fee waiver request is made pursuant to 8 CFR
103.7(c)(1). 124
„
The fee waiver lists the applicant’s assets, income, and expenses, to show that the
applicant does not have sufficient funds to pay the application fee. 125
Trafficking survivors are not considered “unlawfully present” if they demonstrate that the severe form of
trafficking “was at least one central reason for the alien's unlawful presence in the United States.” 8 U.S.C. §
1182 (a)(9)(B)(iii)(V) (2006).
122
See 28 CFR § 103.7(c) (2003).
123
Available at www.usdoj.gov/eoir/formslist.htm.
124
This is not a required form, and an affidavit by the applicant is also acceptable.
125
Gail Pendleton, National Immigration Project, Practice Pointers on Filling with VSC, Feb. 27, 2002.
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does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
7.
B.
1.
„
Applying for a fee waiver will not prejudice the applicant.
„
Only one fee waiver needs to be filed to cover all applications submitted together.
Photographs and Filing Fees
„
Applicant must include three passport photographs, with name and A# (if available)
on the back of each photo in pencil.
„
Biometric fee of $80 and any other fees that are not being waived should also include
applicant’s name. Fees can be paid with check or money order. 126
„
If applying for relative(s), a Form I-914 Supplement A (and Form I-765 if the relative
is already in the U.S.) must be completed for each relative, including three passport
photographs of the relative and the $80 biometric fee (for relatives aged 14-79).
„
The name of the relative should be written on the back of each photo in pencil or felttipped pen.
Preparing The Supporting Documentation 127
Personal Statement/Affidavit
Applicant should submit a detailed personal statement or affidavit. Make sure that each
element is directly addressed:
„
Victim of a “severe form of trafficking” 128
o
State that he or she is a victim of a severe form of trafficking;
o
Discuss the circumstances surrounding the victimization;
o
Were they in control of passport and other identification;
o
Were they free to leave;
o
Were they threatened with deportation/removal or police involvement;
o
Were they physically or psychologically threatened; and
126
It is helpful to pay by check, because the cancelled check will have applicant’s case number on it and is also
proof of filing if USCIS misplaces the file.
127
Samples of supporting documents may be available on Boat People SOS’ and the National Immigration
Project’s websites.
128
8 CFR § 214.11(f).
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does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
o
„
„
Encourage a chronological, personal account of the victimization considering the
elements and factors used to determine if this was appropriate for T visa
submission.
Physically Present Due to Trafficking 129
o
Date, place, manner, and purpose of entry;
o
Explain current presence on account of victimization;
o
Show absence of a clear chance to leave, in light of circumstances including
trauma, injury, lack of resources, or seizure of travel documents; and
o
Letter from NGO or clinical social worker affidavit may be helpful to describe
situation, trauma experienced, et cetera. Particularly from NGOs located in
applicant’s home country.
Complied with any reasonable request for assistance from an LEA 130
o
State compliance with requests and cite LEA endorsement;
o
Name the responsible LEA;
o
Indicate whether specific records of the crime are available;
o
If no LEA certification then explain why it does not exist or is unavailable, such
as an attorney affirmation, secondary evidence noted below, or affidavits;
o
Detail good faith attempts to obtain an LEA endorsement, and note corroborating
documentation;
o
Secondary evidence may include court documents, police reports, trial
transcripts, and affidavits from affiliated agencies.131 Consider also using
documentation from state or local police, or District Attorney’s office. While
they cannot submit the LEA endorsement, such documentation can certainly be
used as a strong basis for credible secondary evidence; and
129
8 CFR § 214.11(g).
130
8 CFR § 214.11(h).
131
8 CFR § 214.11(h)(2). See also New Classification for Victims of Severe Forms of Trafficking in Persons, 67
Fed. Reg. 4784, 4788 (Jan. 31, 2002) (codified at 8 CFR Parts 103, et al.).
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These materials are provided solely for informational purposes and are not
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does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
o
„
If no LEA endorsement due to age, provide evidence that applicant is under 18
years of age and therefore not required to comply. 132
Extreme hardship involving unusual and serve harm upon removal 133
o
State age and personal circumstances;
o
Physical or mental illness requiring medical attention not otherwise available in
the home country;
o
Nature and extent of the medical and psychological consequences of the
victimization;
o
Is applicant undergoing a course of counseling here that would be disrupted, and
may not be available and/or acceptable in home country;
o
Impact of the loss of access to the US civil and criminal justice system for
purposes relating to legal issues arising from the victimization;
o
Laws, social practices or customs of the home country which might penalize the
Principal for having been a trafficking victim;
o
Likelihood of re-victimization and the need, ability, or willingness of home
country authorities to protect the Principal; and
o
Likelihood that the Principal’s safety would be seriously threatened by civil
unrest or armed conflict in home country designated for Temporary Protected
Status (TPS) or Deferred Enforced Departure.
Make sure to review the completed Personal Statement at least once with the applicant
after it has been prepared and edited. If possible, provide the applicant with a translation
of the document (if the applicant is not fluent in English). If a written translation is not
possible, orally translate the Personal Statement, giving the applicant the chance to make
edits and corrections.
2.
Prepare Summary of Law, Memorandum of Law, or Brief
It is helpful to include a brief or memorandum to detail the legal basis for the petition,
substantiating the grounds that support the evidentiary criteria.
132
8 CFR § 214.11(h)(3).
133
8 CFR § 214.11(i).
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These materials are provided solely for informational purposes and are not
legal advice. Transmission of these materials is not intended to create, and receipt
does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
„
Statement of Facts: Begin with a brief reiteration of the factual basis of the claim,
that includes how the individual was trafficked in and his or her victimization in the
United States.
„
Argument: Note how the facts specifically support each element:
o
is physically present in the United States, American Samoa or the
Commonwealth of the Northern Mariana Islands as a result of trafficking;
o
is a victim of a severe form of trafficking in persons;
„
for the purpose of a commercial sex act, which act was either induced by force, fraud,
coercion, or occurred when the applicant had not reached 18 years of age;
„
for the purpose of labor or services induced by force, fraud, or coercion for the
purpose of subjecting the applicant to involuntary servitude, peonage, debt bondage,
or slavery;
„
o
Sex trafficking: the recruitment, harboring, transportation, provision, or
obtaining of a person for the purposes of a commercial sex act;
o
Coercion: threats of serious harm to or physical restraint against any person; any
scheme 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;
o
Debt bondage: the status of a debtor arising from the debtor’s pledge of his or
her personal services or the services of a person under the debtor’s control as a
security for debt, if the value of those services is not applied to satisfy the debt or
if the length and nature of the services are not appropriately limited and defined;
o
Involuntary servitude: a condition of servitude induced by causing a person to
believe that the person or another would be seriously harmed, physically
restrained, or subjected to abuse or threatened abuse of legal process if the person
did not enter into or remain in the servitude; or
o
Peonage: status or condition of involuntary servitude based upon real or alleged
indebtedness.
would suffer extreme hardship involving unusual and severe harm upon removal; and
o
The applicant’s age and personal circumstances;
o
Serious physical or mental illness of the applicant that requires medical or
psychological attention not reasonably available in the foreign country;
o
The physical and psychological consequences of the trafficking activity;
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legal advice. Transmission of these materials is not intended to create, and receipt
does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
„
3.
o
The impact on the applicant of loss of access to U.S. courts and criminal justice
system for purposes such as protection of the applicant and criminal and civil
redress for the acts of trafficking;
o
The impact on the applicant of interruption of counseling and other types of
services;
o
The reasonable expectation that laws, social practices, or customs in the
applicant’s country would penalize the applicant severely for having been the
victim of trafficking;
o
The likelihood of re-victimization and foreign authorities’ ability and willingness
to protect the applicant;
o
The likelihood that the trafficker or others acting on his or her behalf would
severely harm the applicant; and
o
The likelihood that the applicant’s individual safety would be seriously
threatened by the existence of civil unrest or armed conflict, as demonstrated by a
designation of Temporary Protected Status under INA § 244 or the granting of
other relevant protections.
has complied with any reasonable request for assistance in the investigation and
prosecution of acts of trafficking in persons, unless the applicant is less than 18 years
old. 134
Prepare/Organize the Exhibits
Note: The VSC wants a COMPLETE copy of each exhibit. Double-sided copies ARE
acceptable to reduce bulk. Regular copies are acceptable, it is not necessary to have
notarized or certified copies of documents. Translations must be provided of all
documents that are not in English. The translation must include a statement of accuracy
by the translator, but does not need to be notarized. When including a translation, put
the translation on TOP of the original so that the Adjudicator sees the English version
first.
The following is a suggested order for submitting the documents to USCIS:
1. USCIS forms and filing fees, or fee waiver. If a G-28 is submitted it should be on
top and printed blue paper.
134
“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.” 8 CFR 214.11(h). Please
note that while the TVPRA changed this age to 18, that regulations have not yet been amended to reflect this
change.
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These materials are provided solely for informational purposes and are not
legal advice. Transmission of these materials is not intended to create, and receipt
does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
2. Personal Exhibits. These exhibits should come first.
a. Personal Statement of the Applicant. This will ALWAYS be the first exhibit;
b. Marriage Certificate of the Applicant. If applicant is filing for his or her spouse
and/or child(ren), a copy of the Marriage Certificate/Birth Certificates, and a
translation, must be included. If either the applicant or his or her spouse was
previously married, include proof of the termination of all previous marriages
(death certificate or divorce decree and translation); and
c. Birth Certificates. You must prove the relationship for any derivative family
members being added to the application. For children, a copy of the child’s birth
certificate must be included. For parents, the applicant’s birth certificate must be
included. If both parents are not listed on the birth certificate, add the parent’s
marriage certificate.
3. General Exhibits. Following the personal exhibits are the corroborating exhibits that
prove the elements required for a T visa. Try to submit at least one document, in
addition to the Personal Statement, that addresses each element. Examples of general
exhibits may be:
a. witness affidavits;
b. trial transcripts;
c. court documents;
d. police reports;
e. news articles;
f.
travel receipts and documents; and
g. country condition reports.
4. The Supplement B. According to the T Visa Regulations, the Supplement B prepared
by the LEA investigating/prosecuting the crime serves as primary evidence for all
elements except extreme hardship. Some advocates have drafted the Supplement B
for the LEA to ensure that it addresses all of the legal elements directly. This can be
an extremely powerful document if it provides thorough and complete information
and is free from contradictions.
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These materials are provided solely for informational purposes and are not
legal advice. Transmission of these materials is not intended to create, and receipt
does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
5. Highlight key portions. VSC requests that the key portions of the exhibits are
highlighted, especially within the longer documents. VSC Adjudicators have told
advocates that this assists them greatly in identifying the important sections. 135
4.
Prepare Cover Letter
The cover letter indexes the documents included with the application, providing a roadmap
for the adjudicator. While the brief or memorandum will detail the legal basis for the
petition, the cover letter lists the documents that substantiate the claim. It is helpful to add a
summary of each exhibit with an explanation of how it addresses one of the required
elements. Add key quotations to bolster your point.
5.
Assemble the Application
„
Put everything in this order (top to bottom):
1. Cover letter printed on your agency’s letterhead;
2. G-28 (if applicable);
3. Fee Waiver Affidavit (EOIR-26 may be used);
4. I-914 with applicant’s photos and check/money order stapled to the lower lefthand corner. Make sure that the staple does NOT go through the face of the
applicant’s photos;
5. I-914 Supplement A and I-765 (if applicable) for each family member.
Staple the three photos to the upper right-hand corner of the Supplement A and
make sure the staple does not go through the face on the photos; and
6. Exhibits in order, tabbed or divided with colored paper.
„
„
6.
Make two copies of the complete packet. Give one to the applicant and keep one
for your files.
Hole punch and fasten the original application. Use a two-hole punch and punch
through the top of the pages. Fasten the entire packet with an Acco two-hole fastener.
Mail the Application
Write “T VISA” with a fat, red marker on the front of the envelope. Send it Certified,
Return Receipt Requested so that you will have proof that the USCIS received it and so that
135
Pendleton, supra note 19.
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These materials are provided solely for informational purposes and are not
legal advice. Transmission of these materials is not intended to create, and receipt
does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
you will be able to track the application if it is misrouted by the USCIS mailroom to this
address:
United States Citizenship & Immigration Services
Vermont Service Center
Attn: T Visa Unit
75 Lower Welden Street
St. Albans, VT 05479-0001
7.
Follow Up
Keep track of the status of the application compare with others to make sure that nothing
has gone wrong with the filing.
You should receive receipts within four weeks. There will be one receipt for the I-914 and
one for an I-765 employment authorization (even though you didn’t file this form you get a
receipt because it was built-in to the I-914). You will also get receipts for each derivative
application. You can track your receipt numbers at www.uscis.gov as well as sign up for
email updates at that website. At this time, it is taking anywhere from three months to more
than a year for a decision on a T visa. If you do not receive receipts or there are errors, you
can call (802) 527-4888 to leave a message with the T visa unit. You should also consider
writing to them to correct any errors. This number should not be used for case status
inquiries and should only be used by the attorney or representative.
Important Dates:
136
„
Date on HHS Certification Letter, applicant only has 30 days from issuance of this
letter to elect benefits;
„
Date of filing;
„
Date on the Receipt Notice. Receipt Notices and a Biometric/Fingerprint
Appointment should arrive within three weeks of filing;
„
Date on the Bona Fide/Prima Facie Determination letter;
„
Date on any Request for Additional Evidence;
„
Date on the Approval Notice. T status is granted for three years. Ninety days before
the three years expires, a T alien must file for adjustment of status to permanent
residency, or such legal status in the U.S. will be terminated;136
„
Date of interview for family members; and
„
Date of approval of family members.
8 CFR § 214.11(p)(2).
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These materials are provided solely for informational purposes and are not
legal advice. Transmission of these materials is not intended to create, and receipt
does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
III.
Sample Questions for Legal Assessment
Important: This form is intended as a guide for legal practitioners.
Recruitment
„
What were you told about the kind of job/situation that was offered to you?
„
Who offered you the job?
„
How much money was promised to you and by whom?
„
Did you sign a contract? If yes, where is it?
„
What were the terms of the contract?
„
What kind of visa or other documents were promised to you?
„
Was anyone paid to bring you to the U.S.?
„
Were you sold? Were you kidnapped?
Migration
„
How were you brought to the U.S.? Were you informed of this method before you left?
„
Were you in any other countries prior to your arrival here?
„
Who organized your travel?
„
Who accompanied you?
„
If there were other people, do you know what happened to them?
„
Were you always in possession of your documents? If no, who took them and how long did
they keep them?
„
Were you told what to say to immigration officials?
„
Was a fee paid to organize your travels?
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These materials are provided solely for informational purposes and are not
legal advice. Transmission of these materials is not intended to create, and receipt
does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
Arrival
„
Where did you stay upon arrival?
„
What happened to your documents and belongings upon arrival?
„
How soon were you told to begin work?
Working Conditions
„
What was the type of work you were expected to do?
„
Were the conditions and type of work the same as what you expected/ were told?
„
What were the hours/days of your work?
„
What was the pay? Were you paid the amount you agreed to?
„
Were you living and working at the same place? Could you leave?
„
Were you expected to pay off a loan of any kind (i.e. debt bondage)?
„
Do you owe money to your employer or anyone else?
„
Were you allowed time off? Allowed to rest if sick?
„
Were you allowed to communicate with family members? Friends? Other workers?
„
Were you able to attend religious, cultural, or educational programs?
„
Were you able to quit work and work somewhere else?
Safety and Risk
Were you threatened with harm at any time (before you left, in transit, upon arrival)?
Have you experienced…
„
Physical coercion such as:
‰
physical violence
‰
threats of violence
‰
torture/beatings
‰
sexual abuse, harassment
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These materials are provided solely for informational purposes and are not
legal advice. Transmission of these materials is not intended to create, and receipt
does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
Identification and Legal Advocacy for Trafficking Survivors
„
‰
isolation/imprisonment/ incarceration
‰
denial of medical care
‰
denial of food, clothes, or other necessities
‰
other
Psychological coercion such as:
‰
deceit
‰
threats of violence against you or your family, friends?
‰
abuse of others in front of you
‰
threats to report you to authorities, arrange deportation
‰
verbal abuse, degrading remarks
‰
speaking in a language you didn’t understand
‰
threat of isolation
‰
other
„
Are you currently fearful for your own, or anyone else’s, safety?
„
Do you know the current location of the traffickers?
„
What would happen to you if you were to return home?
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These materials are provided solely for informational purposes and are not
legal advice. Transmission of these materials is not intended to create, and receipt
does not constitute, an attorney client relationship. This matter should not be pursued further without contacting an attorney or legal representative.
328
329