Adjustment of Status for T Nonimmigrants By Sarah Bronstein

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1 Adjustment of Status for T Nonimmigrants By Sarah Bronstein The Victims of Trafficking and Violence Protection Act of 2000 created two new immigration benefits, T and U nonimmigrant status, in an effort to assist law enforcement with the investigation and prosecution of trafficking and serious crimes. T nonimmigrant status is available to aliens who are victims of severe human trafficking. U nonimmigrant status is available to aliens who are victims of certain crimes. Regulations implementing the T nonimmigrant provisions became effective on March 4, FR 4784 (Jan. 31, 2002). The U nonimmigrant regulations became effective on October 17, FR (Sept. 17, 2007). Both T and U nonimmigrant status offer pathways to adjustment of status. On December 12, 2008, USCIS published interim regulations providing for adjustment of status for individuals in T and U status. 73 FR The T and U adjustment of status regulations became effective on January 12, 2009 and allow for a 60 day comment period. This article will examine the T status adjustment provisions. The January issue of the newsletter included an article on the U status adjustment provisions. In conjunction with these articles, CLINIC has offered two webinars: January 8 th on the U adjustment regulations, and February 11 th on the T adjustment regulations. CLINIC affiliates who were unable to attend these webinars may visit the members only page of the CLINIC website for a recorded version of the presentation. T nonimmigrants may apply for adjustment of status under 245(l) of the Immigration and Nationality Act (INA). The regulations clarify that INA 245(l) is not a variation of INA 245(a) and therefore the restrictions on adjustment found in that provision do not apply. Section 245(l)(4)(A) of the INA limits the number of T-1 principal aliens that may be granted adjustment of status in a fiscal year to 5000 individuals. This limitation does not apply to adjustment applicants who received T nonimmigrant status as derivatives (spouses, children, parents and unmarried siblings). Once the numerical limit has been reached, USCIS will place eligible applicants on a waiting list. Applicants will receive notification that they have been placed on the waiting list and will be given priority in the next fiscal year. In order to qualify for adjustment of status under INA 245(l), the applicant must have been lawfully admitted to the United States in T nonimmigrant status and must continue to hold that status at the time of the application. The applicant must also meet the physical presence requirements. In addition, the applicant must be admissible and be a person of good moral character since admission in T status. Finally, the applicant must have either complied with any request for assistance from law enforcement in the investigation or prosecution of the acts of trafficking or the applicant must show that he or she would suffer extreme hardship involving unusual and severe harm upon removal from the United States. Applicant Was Admitted in and Maintained T Nonimmigrant Status. In order to show that the applicant was admitted in T nonimmigrant status, he or she must submit a

2 copy of the Notice of Action, Form I-797, granting T status, along with the I-94 Arrival/Departure record if the applicant was in the United States when the T status was approved. If the applicant entered the United States on a T visa, he or she must submit a copy of the passport containing a T visa along with a copy of the I-94. Continuous Physical Presence. The regulations require that the applicant must have maintained continuous physical presence for the shorter of the following two periods of time: either 1) three years since admission as a T nonimmigrant or 2) the period during the investigation or prosecution of the acts of trafficking if the Attorney General has determined that the investigation or prosecution is complete. If the applicant has been outside of the United States for more than 90 consecutive days, or for more than 180 days in the aggregate (a series of absences added together that equal more than 180 days), he or she has not maintained continuous physical presence. Unlike for U nonimmigrants, there is no exception to this 90/180 day rule for T nonimmigrants if law enforcement certifies the absence was required by the investigation or prosecution. If the applicant intends to meet the continuous physical presence requirement by showing that he or she has maintained physical presence for three years since admission as a T nonimmigrant he or she may do so by submitting documents issued by a governmental or nongovernmental authority with the name of the applicant, the date it was issued and a signature, seal or some other means of authentication if the document would normally contain such information. Other suggestions of evidence include school or employment records, tax returns, a series of utility bills or rental receipts or documents in the applicant s DHS file. The applicant must also provide a copy of his or her passport with information about every departure, including the date of the departure and the manner and place of each return. The regulations are unclear as to exactly how much evidence must be submitted or for what periods of time. The preamble to the regulations states that the applicant does not need to provide evidence of presence on every day of the three year period, but that there should be no significant chronological gaps in documentation. The preamble also suggests that an applicant may provide a declaration attesting to his or her continuous physical presence, but that this alone will not be enough to establish continuous physical presence. If the applicant is unable to provide documentation of continuous physical presence, he or she must explain why the evidence is unavailable in an affidavit and provide additional affidavits from others with information about the applicant s physical presence during the requisite period. If the applicant intends to meet the continuous physical presence requirement by showing that the investigation or prosecution was completed in less than three years, he or she must submit a statement signed by the Attorney General, or his designee, indicating that the investigation or prosecution is complete. Not Inadmissible. There are special inadmissibility provisions which apply to T status adjustment applicants. The health related grounds of inadmissibility found at INA 212(a)(1) and the public charge grounds found at INA 212(a)(4) may be waived in the

3 national interest as a matter of discretion. It should be noted that while applicants for T status are exempt from the public charge ground of inadmissibility, there is no exemption form this ground at the adjustment stage. If the public charge ground applies to the applicant for adjustment, he or she must request a waiver of this ground. The preamble states that if an applicant is receiving or has received public benefits as a trafficking victim, that fact will not in and of itself be conclusive evidence that the applicant is likely to be a public charge. The security and terrorism related grounds (INA 212(a)(3)), the international child abduction ground (INA 212(a)(10)(C)) and the ground relating to former citizens who renounced citizenship to avoid taxation may not be waived (INA 212(a)(10)(E)). All other grounds of inadmissibility may be waived in the national interest if the activities leading to the applicant s inadmissibility were caused by, or were incident to the applicant s status as a victim of trafficking. The regulations indicate that if the applicant is inadmissible under a ground that was not previously waived at the time of adjudication of the application for T status, he or she must file Form I-601, Application for Waiver of Grounds of Excludability, with the $545 fee or a request for a fee waiver. The interim regulations amend 8 CFR to allow for a fee waiver for the I-601 for T status adjustment applicants, among a limited number of others. The regulations do not provide suggestions of what type of evidence should be submitted in support of requests for waivers. The waiver provisions are written in a way that suggests they should be applied generously, but as with any other discretionary matter, advocates should attempt to provide documentation of the applicant s family and community ties and any other positive factors. If the applicant must demonstrate that activities leading to the applicant s inadmissibility were caused by, or were incident to the applicant s status as a victim of trafficking, applicants must also provide evidence of such a link. The INA exempts the applicant from the unlawful presence ground of inadmissibility at INA 212(a)(9)(B)(iii)(V) if the applicant can show that his or her victimization was at least one central reason for the unlawful presence. The interim regulations clarify that the victimization does not have to be the sole reason for the unlawful presence, but the connection does have to be more than tangential, incidental, or superficial. Because this is an exemption rather than a waiver, the applicant does not need to file an I-601, but he or she must submit evidence showing the connection between the victimization and the unlawful presence. Good Moral Character. T status applicants for adjustment of status must show that they have been persons of good moral character since admission as a T nonimmigrant and through completion of the adjustment process. The requirements for showing good moral character are found at INA 101(f).

4 The preamble clarifies that the time period during which INA 101(f)(3) bars aliens who have engaged in prostitution or commercialized vice as described in section 212(a)(2)(D) of the Act from showing good moral character is the period of time since admission as a T nonimmigrant through adjustment rather than the ten year period required under section 212(a)(2)(D) of the INA. This is an acknowledgement on the part of USCIS that some T nonimmigrants may have engaged in prostitution as a result of having been trafficked and that this should not bar them from adjustment. Applicants who are under 14 years of age are generally presumed to be people of good moral character and therefore do not need to submit evidence of good moral character. In order to demonstrate good moral character, the application should include an affidavit from the applicant attesting to his or her good moral character. The applicant should also submit a local police clearance or state issued criminal background check from each locality or state in the United States in which he or she has resided for six months or more since admission in T status. If such reports are not available for all locations where the applicant has resided, he or she should submit an explanation of his or her attempts to obtain such a report. Assistance in the Investigation or Prosecution or Extreme Hardship. The applicant must show that during the required period of continuous physical presence he or she complied with any reasonable request for assistance in the investigation or prosecution of the acts of trafficking. In the alternative, the applicant may choose to provide evidence that he or she would suffer extreme hardship involving unusual and severe harm if removed from the United States. It is important to note that unlike the T nonimmigrant provisions, the T status adjustment provisions do not exempt children under the age of 18 from the requirement that they comply with reasonable requests for assistance or that they show extreme hardship if removed. In order to show compliance with reasonable requests for assistance, the applicant must submit a document issued by law enforcement certifying that he or she complied with any reasonable requests for assistance. If the applicant intends to show extreme hardship rather than assistance in the investigation or prosecution, the standards for showing extreme hardship in the adjustment context are the same as those established for obtaining the underlying T status. The applicant must provide documentation of the hardship unless the basis of the hardship is a continuation of the hardship claimed in the underlying T status application. If the basis is the same, the applicant may submit evidence that the previously documented hardship is ongoing rather than re-documenting the entire claim. The regulations state that factors which will be taken into account in determining extreme hardship include: whether the applicant suffers from a serious physical or mental illness that requires medical attention not readily available in the country of origin; the nature and extent of the physical and psychological consequences of trafficking; and the likelihood that the trafficker or someone acting on his or her behalf in the country of origin would severely harm the applicant. The regulations state that extreme hardship

5 may not be based upon current or future economic detriment or the lack of or disruption to social or economic opportunities. Adjustment is Discretionary. The regulations state that applicants have the burden of showing that discretion should be exercised in their favor. In the absence of adverse factors, family ties, hardship and length of residence in the U.S. may be enough to merit a favorable exercise of discretion. Where there are adverse factors, the applicant must make greater attempts to show he or she has sufficient equities to outweigh the negative factors. The regulations indicate that there is a possibility that the adverse factors will be such that the applicant may be required demonstrate that the denial of adjustment would result in exceptional and extremely unusual hardship. The regulations go on to state that there may be circumstances where even if the applicant is able to meet this heightened hardship standard, a favorable exercise of discretion would not be warranted. The preamble lists examples such as where the applicant has committed or been convicted of a serious violent crime, a crime involving sexual abuse of a child, multiple drug-related crimes or where there are security or terrorism related issues. Application Process. As with other requests for adjustment of status, requests for adjustment of status for T nonimmigrants must be made on Form I-485. The application must include the standard fees, including biometrics fees, or a fee waiver request with the supporting documents described above. The instructions to the I-485 specify the filing locations. If the applicant is seeking a waiver of any of the grounds of inadmissibility, he or she must also submit Form I-601 with the fee or a fee waiver request. T status adjustment applicants may apply for employment authorization under category (c)(9) once their I-485 is filed. Transition Rule for those with Four or More Years in T Status. The maximum duration of T status is four years absent a law enforcement certification stating that the T nonimmigrant s presence is necessary to assist in the investigation or prosecution of trafficking. Because adjustment of status was not available to T status holders until these regulations became effective, some T status holders have held that status for more than four years. Therefore, there are some individuals who would be ineligible for adjustment of status because they were no longer in T status at the time of adjustment. In order to address this problem, the regulations create a transitional rule to allow individuals who have been T status holders for four or more years to adjust status if they file an adjustment application within ninety days of promulgation of the regulations. Derivatives. Derivative T nonimmigrants may apply for adjustment of status concurrently with the principal s application, while the principal s application is pending, or after the principal s adjustment has been approved. Derivatives can not submit an application for adjustment of status before the principal has filed for adjustment. If the principal s adjustment application is denied, any derivatives adjustment applications will automatically be denied. All grounds of inadmissibility may be waived for derivatives except for the grounds related to national security, international child abduction and former citizens who renounced citizenship to avoid taxation. The health and public charge grounds of inadmissibility may be waived in the national interest. All other

6 grounds may be waived in the national interest and if the activities rendering the derivative inadmissible are related to the principal T status holder s victimization. Travel Issues. T nonimmigrants who have pending applications for adjustment of status must apply for advance parole from USCIS prior to traveling. If the applicant does not do so, USCIS will consider the application to be abandoned upon the applicant s departure from the United States. Applicants should seek advance parole by using the standard advance parole form, Form I-131. It is important to remember that T status adjustment applicants who travel outside the United States, even on advance parole, will be subject to all of the grounds of inadmissibility upon seeking re-entry to the country. Decisions. If the adjustment application is approved, USCIS will send an approval notice which will direct the applicant to a local USCIS office or an Application Support Center to complete Form I-89 for final green card processing. At that time the applicant will be able to request temporary evidence of lawful permanent resident status. If the application is denied, the applicant may appeal the denial to the Administrative Appeals Office.