Lisa Rafonelli in Refugee Reports

INS Final Rule to Assist Victims of Trafficking

by Lisa Raffonelli, International Institute of Rhode Island

"Dinh Kim" is a 24-year-old seamstress from Vietnam.  She arrived in California in April 2001, just weeks after the Federal Bureau of Investigation (FBI) arrested the man who kept her and more than 200 other women virtually enslaved at the Daewoosa-Samoa garment factory in American Samoa, a U.S. territory about 2,300 miles southwest of Hawaii. 

Dinh Kim left her home in Ninh Binh, Vietnam in 1999, after scraping together $1,000 to pay a Vietnamese recruitment agency to send her to American Samoa so that she could earn money to send back to her family.  The recruiters told her that she could earn more than $10,000 dollars a year, more than enough to pay back the rest of her high interest recruitment fee and send money to her family.  (An average annual salary in Vietnam is about $300.) 

Upon arrival in American Samoa, however, Dinh Kim was forced to live in an overcrowded, filthy (usually locked) compound with about 250 other workers.  The factory manager often deprived Dinh Kim and her coworkers of food, beat them, and forced them to work long hours for little or no pay.  Many of the young women were raped by men who worked under the manager.

"The conditions under which these workers work[ed] were beyond comprehension," then-Secretary of Labor Elaine L. Chao remarked last May, citing a report released by the Occupational Safety and Health Administration (OSHA).  OSHA fined the factory owner several times before closing the factory down in January 2001.  At the time, the U.S. Department of Labor reported that the workers resembled "walking skeletons" and that they were systematically starved.  When the workers did eat, OSHA said, meals consisted of watery broth, cabbage, and meager portions of rice.

In March 2001, the FBI arrested and charged the factory owner—Kil Soo Lee of South Korea—with involuntary servitude and forced labor.  Lee is now detained and awaiting trial in Honolulu.  The FBI also brought charges against executives from the Vietnamese recruitment agencies that facilitated the workers’ departure from Vietnam for large sums of money under false pretenses.

After the factory was closed, a small number of the workers returned to Vietnam.  However, Dinh Kim and about 200 others—mostly women—remained on the island, unable to repay debts to the recruitment agencies or afford airline tickets home.  In exchange for their testimony in court against their former boss and the recruitment agencies, the FBI brought them to the United States.

The Justice Department admitted Dinh Kim and the others as "parolees" largely because many of the regulations to implement new legislation referred to as "The Victims of Trafficking and Violence Protection Act of 2000" did not yet exist.  (See Refugee Reports, Vol. 21, No. 5.)  The legislation—signed on October 28, 2000 by former president Clinton—includes extensive anti­trafficking measures under the Trafficking Victims Protection Act (TVPA) and the re-authorization and expansion the Violence Against Women Act. 

The Final Rule

On March 4, 2002, the INS final rule concerning T nonimmigrant visas for victims of severe forms of trafficking in persons came into effect.  As a result, Dinh Kim can now apply for the T visa, which includes many of the benefits of refugee status and will enable her to apply to adjust to permanent resident status after three years.

To protect trafficking victims, the TVPA established the T visa (with a cap of 5,000 visas per year) for victims of "severe trafficking" who cooperate with law enforcement efforts to prosecute traffickers.  The government defines severe forms of trafficking as sex trafficking induced by force, fraud, or coercion (unless the person is under the age of 18 in which case these elements are not required) 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.

The final rule clarifies eligibility requirements for the T visa and outlines its derivative benefits to victims and their immediate family members.  According to the text of final rule, it addresses "the essential elements that must be demonstrated for classification as a T nonimmigrant alien; the procedures to be followed by applicants to apply for T nonimmigrant status; and evidentiary guidance to assist in the application process."

Trafficking in the United States

The official U.S. government definition of trafficking encompasses "all acts involved in the transport, harboring or sales of persons within national or across international borders through coercion, force, kidnapping, deception or fraud, for purposes of placing persons in situations of forced labor or services, such as forced prostitution, domestic servitude, debt bondage or other slavery-like practices."  The international community generally agrees children may be considered "trafficked" if they are transported and used for forced labor or services whether or not they have been taken forcibly.

Trafficking is distinguished from "smuggling," which involves illegally facilitating transportation to a foreign country for people who are willing to pay a fee for the service.  Themes of fear, force, and exploitation are central to most broadly accepted meanings and distinguish trafficking from smuggling. 

U.S. counter-trafficking efforts (and the TVPA) are guided by what U.S .government officials call the "3-P Approach":  1) prevention of trafficking through education, increasing public awareness, and economic alternatives;  2) protection for the victims and their families, and 3) prosecution of the traffickers. 

The TVPA aims to combat trafficking, ensure "just and effective" punishment of traffickers, and protect victims.  In addition to creating the new T visa for trafficking victims, the TVPA established an interagency task force to monitor and prevent trafficking, increased prison time for trafficking, permitted life sentences in cases of where victims are assaulted or killed, and created new trafficking crimes with severe penalties.

Congress has estimated that at least 700,000 people are trafficked within or across international borders each year, with 45,000 to 50,000 victims brought into the United States.  This is a rough estimate, however: statistics on the number, gender, and nationality of victims are difficult to gather due to the clandestine nature of the trafficking industry.  "The trade is secretive, the women are silenced, the traffickers are dangerous, and not many agencies are counting," wrote Dr. Donna M. Hughes of the University of Rhode Island, a leading researcher on trafficking and sexual exploitation of women. 

Prostitution, pornography, sex tourism, and other commercial sexual services account for much of the human trafficking trade in the United States.  Other trafficking victims commonly work as bonded or sweatshop laborers or as domestic servants.  Also documented is trafficking for trinket peddling and begging.  The Paloetti family of New York trafficked more than 1,000 deaf Mexicans to sell trinkets and beg from the early 1990s until 1997, when 70 victims were discovered in a raid and eventually offered legal status in the United States after testifying against their traffickers. 

Refugees may more likely be smuggled than trafficked.  However, some refugees also fall into the hands of traffickers. The UN High Commissioner for Refugees (UNHCR) has noted that while the smuggling definition "is closest to describing the migration stories of many refugees, some refugees will inevitably be involved in trafficking or it is the persecution involved in the process of trafficking itself that might provide grounds for asylum."

Victim Protection

To protect victims, the TVPA established the T visa for victims of "severe trafficking."  However, victims like Dinh Kim must comply with "any reasonable request for assistance in the investigation or prosecution of acts of trafficking in persons" and be able to "demonstrate that they would suffer extreme hardship involving unusual and severe harm if they were removed from the United States."  T-visa holders who can demonstrate "good moral character" for three years will be eligible to apply for an adjustment to lawful permanent resident status.

For the purposes of the T visa classification, victims of severe forms of trafficking must be physically present in the United States, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa or the Commonwealth of the Northern Mariana Islands, as a result of trafficking. 

Physical presence is also extended to victims of trafficking who arrive at ports of entry to the United States and its territories.  In such cases, individuals must express their status as a victim of trafficking to immigration officials when they arrive.  If their claim is deemed bona fide, the INS will refer their case to the closest district office for further investigation and interview the victim within one week.

In cases denied at the port of entry, persons normally subject to expedited removal from the United States will be handled in accordance with INS standard operating procedures, including the possibility of immediate deportation and a bar on re-entry for 5-20 years.  (See Section 235 (b)(1) of the Immigration and Nationality Act of 1952 for further clarification of "expedited removal".) 

Waiver of Inadmissibility

Because victims of severe forms of trafficking, similar to refugees, arrive in the United States as a result of their victimization, Congress has granted the INS the authority to exempt trafficking victims from certain admissibility requirements. 

Under the final rule, if a trafficking victim enters the United States illegally, he or she must first apply for a "waiver of inadmissibility" from the INS before applying for the T visa.  Waivers are not granted automatically.  Individual applications are judged on a case-by-case basis and should be filed with the application for T nonimmigrant status.

According to the final rule, the attorney general may "waive the criminal grounds of inadmissibility" if the activities rendering the trafficking victim inadmissible "were caused by or incident to the alien’s victimization."  The final rule also permits the attorney general to admit trafficking victims who do not meet minimum health requirements or those whose financial situation would make them a public charge.

Trafficking victims who are currently outside of the United States or who have traveled outside and returned are ineligible for T visa status, unless they can prove that their return to the U.S. is the result of new trafficking or continuing victimization.

Continued Presence

Under the rule, Federal authorities may also grant "continued presence" to victims whose cooperation in the prosecution of trafficking cases is requested by the government.  Continued presence status can be taken as evidence of victim status, however, it should not be misconstrued as an automatic approval for T visa status.   Once the victim’s assistance is no longer required by the investigating agents, her or his permission to remain in the country may be revoked. 

A controversial aspect of the continued presence provision is that federal agents may supersede a victim’s wishes and require the victim to remain in the United States, if his or her "departure is deemed prejudicial to the interests of the United States."  Such action by the government may apply in cases where the victim is required as a witness in pending cases or investigations, or if the "alien is a fugitive from justice, or if it is believed that the alien is being forced to depart involuntarily under conditions other than removal, exclusion, or extradition." (See 8 CFR part 215 for a full explanation of procedures governing this action.)

In many cases, however, victims of trafficking wish to remain in the United States because returning to their countries of origin would expose them to danger.  Many trafficking victims face discrimination and disgrace in their home communities, especially those who have been forced into prostitution.  Some face threats by the traffickers themselves, or may be recaptured into debt bondage.

"I hope to stay here in Honolulu, in the United States, for a long time," Dinh Kim told Refugee Reports.  "I am safe here.  I have a good job and can send money to my family back home.  There are men in my country who say I owe them money, so I need still to pay my debt, or my family will be shamed."

Applying for the T Visa

To receive the T visa, an applicant must fill out INS Form I-914.  She or he must then prove two components of the legal definition of "severe" forms of trafficking: 1)"a particular means (force, fraud, or coercion)," and 2) "a particular end (sex trafficking, involuntary servitude, peonage, debt bondage, or slavery.)"

According to the final rule, victims of trafficking whose victimization occurred prior to the enactment of the TVPA are not precluded from applying for T nonimmigrant status, nor will the application for T status prevent a victim from applying for any and all immigration benefits for which she or he is eligible.  Victims who are under age 18 are exempt from proving force, fraud, or coercion.  Those under 15 years of age are not required to assist in the investigation or prosecution of their traffickers.

    The application for T status allows the primary applicant (T-1) to apply for derivative status for immediate family members.  These include:  T-2 visas for spouses; T-3 visas for children of victims of trafficking over the age of 21; and for principal applicants up to the age of 21, T-4 parent visas.  For each, proof of extreme hardship must be shown for the visa to be granted.  Derivative applicants do not need to be physically present in the United States to apply. 

A complete application for T nonimmigrant status includes form I-914 and required supplements; fingerprints of all applicants between the ages of 14 and 79; three identical photographs of each applicant; the correct filing fee; and signatures from all applicants physically present in the United States at the time of application. 

The INS has set the filing fee at $200, plus $50 for each immediate family member filed concurrently on the same application, to a maximum fee per application of $400.   Applicants may apply to waive the filing fees.  However, a charge of $50 per applicant for fingerprinting cannot be waived.  Eligible applicants who are physically present in the United States may also file for employment authorization.

Required Evidence

The application also includes a form to be completed (a "declaration") by law enforcement officials (Form I-914, Supplement B).   Law enforcement agency (LEA) endorsement should be issued by federal agents investigating the trafficking case.  The agents must present prima facie evidence that a person is a victim of a severe form of trafficking in persons and is cooperating with law enforcement agents.  Such endorsement is recommended but not required from victims.  Children under the age of 15 are exempt. 

If an applicant chooses not to submit LEA endorsement, the I-914 requires that victims submit "credible secondary evidence" to support their claim of eligibility.  Such evidence may include news articles, police reports, affidavits from witnesses, or other evidence of their victimization. 

In addition, all applicants for T-1 (primary) status must submit a personal narrative statement, outlining the events leading to and continuing their victimization.  The INS requires that applicants recount details of their entry into the United States.  Such details include: 1) how, when, why, and by whom they were brought into the country; 2) the duration of detention, if any, by the traffickers; 3) the conditions of their release or escape; 4) activities since separation from the traffickers; and 5) reasons the applicant has not departed the United States thus far, including reasons behind any fears of persecution upon removal. 

In cases where applicants have escaped their traffickers prior to law enforcement intervention, the victim must prove that she or he had no reasonable means to leave the United States.  A lack of sufficient funds or appropriate travel documents may be cited as reasons for remaining in the United States, as well as having a well­founded fear of persecution upon return to one’s country of origin. 

Detention

Under the final rule, law enforcement authorities may detain a victim during the course of investigating a trafficking claim if the individual circumstances of the case require it.  However, the TVPA stipulates that victims of severe forms of trafficking "not be detained in facilities inappropriate to their status as crime victims."  While victims should also be protected from recapture or other reprisals by their traffickers, the TVPA says, such protection should not be the sole reason for detention by the INS. 

Furthermore, the rule states that victims must be apprised of their rights and services available to them, including access to translators; legal assistance; federal and state benefits and services; privacy and confidentiality issues; the availability of medical and counseling services; and victim compensation and assistance programs. 

Annual Cap

No more than 5,000 T visas will be issued each fiscal year.  Derivative T status applications for family members are not subject to the same annual limitation. 

Once the 5,000 cap on visas has been reached, additional applications will continue to be reviewed.  Those approved will be placed on a waiting list for the following fiscal year and notified of such placement.  According to the final rule, this pending status will not affect the immigration or employment eligibility status of the T-1 applicant, nor will it accrue unlawful presence for applicable cases.  The INS will reportedly make every effort to ensure that wait-listed applicants are not removed from the United States while their applications are pending.

Once new visas become available, applicants will be granted status in the order in which they filed.  Subsequent revocations of T-1 status by the INS will not affect the annual cap.

Because applicants must remain admissible until T status is granted, some may be asked to resubmit fingerprints and photographs if the wait for available slots is deemed by the INS to be too long.  In these cases, fees for the additional fingerprinting must be paid once again by the applicant. 

INS officials report that the processing time for applications should take no longer than thirty days.  If an applicant’s request for T status is denied, she or he has the right to appeal the decision to the Administrative Appeals Office.

Once granted, T status is valid for three years, the period required before an applicant may file to adjust to lawful permanent residence.

Adjustment of Status

Under the final rule, T visa holders may apply to adjust their status within the "90-day period immediately preceding the third anniversary of the date of approval" of T nonimmigrant status.  Adjustment of status is not automatic. 

Under Section 107 of the TVPA, T-visa holders who can demonstrate continuous presence in the United states, have complied with any reasonable requests for assistance by law enforcement officials, and can demonstrate "good moral character" for three years will be eligible to adjust to lawful permanent resident status.  Victims must also demonstrate that they face "a significant possibility of retribution or hardship" if removed from the United States.

The final rule also limits to 5,000 the number of T-visa holders who can adjust their status annually. 

"Refugee" Benefits for Victims of Trafficking

Once T status is granted, applicants may apply to the Department of Health and Human Services (DHHS) "to be certified to receive certain benefits and services to the same extent as refugees."  This provision is specified in Section 107 (b) of the TVPA and applies only to those victims who have reached the age of 18.  Minors may also be eligible for refugee-like benefits, but DHHS certification is not required, nor is the submission of an application for T status a requirement for consideration.  Individuals who have been granted continued presence may also apply for certification. 

The Office of Refugee Resettlement (ORR) has authority to provide certification to victims of trafficking in the form of a "letter of certification" for adults over 18, and a "letter of eligibility" for minors.  With certification comes a recommendation to a benefit-granting agency from which victims of trafficking can obtain benefits and services including medical and cash assistance, job counseling, and placement assistance, to the same extent as refugees.

Procedures for Benefit-granting Agencies

For national voluntary agencies offering services to refugees, the extension to victims of trafficking is a straightforward one, provided the victim of trafficking has followed the protocol for certification by ORR.  The procedures as laid out by ORR are similar to normal procedures for processing refugees, with the following exceptions. 

Agencies should:

•  Accept the letter of certification or determination

  in place of other INS documentation such as an 

  I­-94.  Original copies of the letters must be

  presented: the voluntary agency should retain a

  photocopy and return the original to the applicant; 

•  Call the trafficking verification line at

  202-401-5510 to confirm the validity of the letter

  and to notify ORR of the benefits for which the

  individual has applied; 

• Record the date of certification as the "entry date"

  for refugee benefits purposes;

• Issue the same benefits available to refugees,

  provided the applicant meets other program

  eligibility requirements.

Persons holding certification as a victim of trafficking may not have standard documents of identity, such as social security numbers or driver’s licenses.  Voluntary agencies should assist applicants in obtaining the proper documents, especially social security numbers, because many public assistance programs are inaccessible without them. 

If agencies encounter an individual they suspect may meet the requirements of a victim of severe forms of trafficking but who does not have a letter of certification or determination by ORR, they should contact ORR immediately.  There are separate offices designated to investigate suspected adult and child cases of trafficking.  The Department of Justice (DOJ) has also established the Trafficking in Persons and Worker Exploitation Task Force complaint line at 1-888-428-7581. 

The hotline is staffed by personnel with access to interpreters in many languages, and can "refer cases to prosecutors and investigators, and direct victims or their advocates to appropriate services and assistance."  (See box, p. 7.)

Service providers emphasize that agencies should be prepared to assist victims throughout the application and certification process.  Others worry that the resources available to victims of trafficking are not sufficiently developed for protection.  Joy Zarembka, director of the Campaign for Migrant Domestic Workers Rights, stated,   "Given the overwhelming amount of documents required for certification and status, federal authorities should ensure that trafficked individuals are not only informed of these services available to them, but walked through the process." 

Citing hotlines and other information-only services, she continued, "Some organizations provide information to victims, but there is no mechanism in place to ensure that the information is understood and acted upon.  There is little follow-up and moreover, it is difficult for trafficked individuals to get in touch with these hotlines in the first place.  Most operate only during working hours, and my experience shows that overworked workers are working during work hours."

Protecting Victims

If a victim of trafficking is deemed to be a potential witness to trafficking in persons, the TVPA stipulates that the victim should be protected from suspected traffickers even when the victim is not in custody.  The TVPA also recognizes the potential for traffickers to use threats of reprisal against victims or their family members as a means to force compliance with their wishes.  Such compliance, the law says, may include a victim’s return to the control of the traffickers, reimbursement of funds allegedly incurred by the traffickers on the part of a victim, or a refusal by a victim to cooperate in the prosecution of the traffickers.

However, service providers have told Refugee Reports that it is not clear how the government proposes to meet this requirement in certain cases.  "Women are rotated and exchanged between cities and states," Dr. Hughes noted.  "Trafficking routes inside the United States can be regional or national, or extend from coast to coast."  As a result, for victims of trafficking who escape their traffickers, there may be few places of refuge beyond the traffickers’ reach.  Dianne Post, an attorney for the Arizona Coalition Against Domestic Violence, stated, "The TVPA itself creates a Catch 22 for the victims.  They cannot receive services and benefits until they have applied for a T visa and, if they don’t speak the language, they cannot apply for a T visa without help.  The obvious response is to turn to the local immigrant community that speaks the same language as the victim." 

"The problem is that the traffickers themselves are often from the same ethnic background as the victim, and they will have ties in the local community, so the victim is led right back to the trafficker," Post said.

Some service providers have also raised concerns about reprisals against their agencies because an agency which harbors or assists victims of trafficking could be viewed by traffickers as a threat to their business.  "I know of social service and legal providers that have been threatened and refuse to publish their addresses out of sheer fear," Joy Zarembka said.   "Agencies which advertise themselves as shelters for trafficked individuals are especially vulnerable, which presents an interesting paradox:  advertising their services may endanger the agencies and their charges, while a refrain from advertising inhibits the ability of people to reach assistance and protection." 

Finally, some providers worry that the new rule assumes that victims will willingly cooperate with federal authorities.  "If a victim of trafficking is found by or presents him or herself to federal authorities, the procedures as they are written are fairly adequate to afford assistance," said Veena Iyer, Asylum & Trafficking Services Coordinator for Midwest Immigrant & Human Rights Center in Chicago.  However, she added, "the procedures are less clear in cases where benefit-granting agencies identify victims of trafficking and need to refer the individual to law enforcement and federal authorities." 

"For a victim of trafficking who reaches out to a religious institution, voluntary agency, or even a domestic violence shelter, the required referral to federal authorities could be tantamount to betrayal," remarked Jenny Stanger, the Media/Advocacy Director of CAST, the Coalition to Abolish Slavery and Trafficking.  "The T visa is a tool for prosecution, not for victim protection.  Victims are sometimes freed from their traffickers only to become shackled to the criminal justice system."

Outstanding Issues

With the protocol for T visa application and protection of victims under the TVPA in place, service providers and advocates have expressed concerns about a range of issues regarding the implementation of services for victims of trafficking.                                        

 Several providers told Refugee Reports that, outside of federal protective custody, there are few safe housing options for victims of trafficking in their areas.  Shelters in many areas are often over-filled or inaccessible. "Local domestic violence and sexual assault shelters are ill equipped to meet the safety needs of a victim of trafficking.  Short of a witness protection program and removal of the entire family to the U.S., safety for the victim remains elusive," said Post.  Zarembka added, "Currently, there are not enough shelters willing to take the risk, and we are left with a mini housing crisis every time a trafficked individual is unearthed."  The new rule, providers add, does not fully address what an agency should do to accommodate victims under 18 years of age.

Some suggest placing minors in foster care, or state care if fostering is not an option.  Such care, they say, could be temporary, until T-4 derivative status for parents is attained.  If the parents are unable or unwilling to join the victim, long-term state care for minors or the use of unaccompanied minors programs run by certain voluntary agencies may be a viable option.

According to providers, some victims of trafficking have had difficulty finding employment, even after employment authorization has been granted.  Most victims have worked illegally or under-the-table in difficult conditions.  This may put them at risk of exploitation by their new employers, mirroring their original mistreatment at the hands of their traffickers.  "Victims of trafficking are especially susceptible to the influence of their communities," said John Kidane, Director of Refugee Services at the Nationalities Service Center in Philadelphia, which resettled a group of 24 victims of trafficking last year.  "We found that our programs, designed to be equitable to all clients, were wholly inadequate for the needs of this special population.  As a result, our services were consistently undermined by the advice of the local community," Kidane said.

This raises another concern, that of medical treatment.  A majority of victims of trafficking are forced into prostitution, exposing them to myriad sexually transmitted infections, including HIV.  An initial medical examination may not be adequate for their needs, and until they are certified and receive refugee-like benefits, victims of trafficking have limited access to on-going medical assistance.

Finally, many victims of trafficking will need services to help them address the trauma of their experiences.  "Common effects of trauma include nightmares, inability to trust others, depression, anxiety and other indicators of Post-Traumatic Stress Disorder," Scott Portman, Program Supervisor for Asylum & Trafficking Services at Midwest Immigrant & Human Rights Center, told Refugee Reports. "Trafficking victims suffer from a natural reaction to unnatural events, not a mental illness.  They need access to appropriate mental health services that focus on helping the victim regain trust, reintegrate into the community and achieve self­sufficiency," he added.