USCIS/VSC: TRAFFICKING-RELATED IMMIGRATION PETITIONSFreedom Network Conference 2015

Washington, D.C.

Panelists:

Amany S. Ezeldin

Adjudications Officer (Policy), Family Immigration & Victim Protection Division, Office of Policy and Strategy (OPS), U.S. Citizenship & Immigration Services

Rachel Winkler

Immigration Law Analyst, U.S. Department of Homeland Security Office of the Citizenship and Immigration Services Ombudsman

Suzanne Tomatore

Director, Immigrant Women & Children (IWC) Project, City Bar Justice Center

Facilitator: Patricia Medige

USCIS/VSC: Trafficking-Related Immigration Petitions

Overall:

1. Can you provide data on numbers of Ts and Us approved in each of the past three years, and current processing times?

3. What are the most common mistakes that should be avoided in T and U applications? 

In T/U Adjustment of Status applications?

4. Questions relating to new bar codes that now appear on many forms, including the G-28, I-914, I-918 and I-131:

Could you explain what information ends up in the bar codes?

Sometimes information does not fit into the printed form, such as if the client has two long surnames. If we hand-write the letters of the name that do not fit into the form, will that get into the system or does only the information entered into the bar code get into the system?

Does each page of a form (such as the G-28) have different information in the bar code? That is to say, if a field is changed on one page of the G-28, does it change the bar code on all of the pages? Or can just the one page be reprinted?

Is there anything else we should know about bar codes?

5. What are the most common reasons VSC issues RFEs for Ts and Us? 

Most common reason for NOIDs? 

6. It seems difficult on the advocate side to anticipate when NOIDs are issued. Could you tell us what the practice is for issuing NOID’s, versus an RFE followed by a denial with no NOID? I know a memo came out a while back, but I don’t know that the memo reflects what happens on the ground.

7. Is Bates numbering of supporting documents helpful?

Preferred?

8. Please clarify the mailing address and special instructions for mailing. Do these applications go to CVU, Box 600, VAWA Unit, VTU, etc.? I have seen various abbreviations over the years.

T visa:

9. The I-914 includes the following “Yes/No” statement at Part C, Q#9: "My most recent entry was on account of the trafficking that forms the basis for my claim." I am concerned that this is not a legally accurate statement and is misleading, because one must show they currently are present on account of the trafficking, not that they entered on account of the trafficking. For example someone can be brought to the U.S. as a small child and later trafficked as a teenager. Trafficking is about power and control and not movement. Is USCIS willing to considering such alternate scenarios when the answer to this question is “no”?

10. Can you tell us the best way to respond to a Request for Evidence that asks for information previously submitted? Sometimes it seems as though the

adjudicator hasn’t read the cover letter or supporting documents. We don’t know how to respond if we already have provided certain evidence addressing the particular element, but the RFE does not acknowledge that evidence.

11. How persuasive is country condition evidence in support of the T hardship element?

12. Trauma exception (INA § 101(a)(15)(T)(i)(III)(bb)):

We heard that due to internal guidance all T-1 applicants had to at least report the trafficking before claiming the trauma exception. This seems contrary to the purpose of the statute, which is to create an exception for reporting and cooperating with LEA when the physical or psychological trauma is too great. Is this the case?

13. When will updated regulations be promulgated and, when that happens, will there be an opportunity to comment on them? They have not been updated since 2001

and we have been promised updated regulations for five years. The out-of-date regulations can be confusing. For example, 8 CFR 214.11 (b)(3)(ii) still lists the cut-off for law enforcement cooperation as 15, which recently confused a pro bono attorney.

14. T filing while in immigration detention:

Please clarify who may/must request expedited processing of a T visa for an individual in detention. Must the request come from the ICE Office of the Chief Counsel?

How are requests to expedite processing of T visas for detained applicants considered? What type of communication may an applicant's representative expect from VSC to verify that an application is being expedited (sometimes we do not hear one way or the other)? (This advocate recently had a client deported while her T was pending).

15. Ongoing assurance about cooperation for individual trafficked under age 18, but now over 18:

At the 2013 Freedom Network Conference, Scott Whelan and VSC confirmed that for the T visa “cooperation” element, individuals who were trafficked as minors under age 18 do not need to show law enforcement cooperation even after turning 19. As advocates we've seen VSC continue to uphold this standard but we would like a 2015 reiteration of this, especially with the influx of UAC cases.

16. We’ve received RFEs for juvenile records/dispositions, especially in drug mule cases. We'd like VSC to reiterate the standard that juvenile acts are civil dispositions, not criminal, and that if criminal convictions are tied/related to the trafficking (even for drugs) that VSC will take this into account for waiving this in I-192 applications.

17. A lot of our UAC cases and border trafficking/drug mule cases (but also some sex trafficking cases) involve unhelpful interactions with CBP.  The credible fear assessments often are done hastily and poorly and many of our clients witness CBP inexperience, apparent corruption, such as involvement with cartels, etc., or general incompetence. Yet a lot of CBP records, which might take forever for us as advocates to view, are being held against our clients as credibility issues in RFEs, etc., for example, if they do not mention forced labor that emerges later. What consideration is VSC putting into learning more about the

inaccuracy of these CBP reports (see even the GAO investigation into CBP corruption), etc. especially for minors? 

Right now we have asylum officer trainings on how they interview minors and these best practices; when will we see USCIS policy guidelines on T visa adjudications that broadly address how trafficked individuals, esp. minors, are being screened, and how deficiencies later affect their credibility/testimony? 

18. Is there a discernible difference in processing times for I-914 applications with and without Supp. Bs?

Continued Presence:

19. How many Continued Presence extensions has USCIS granted based on the filing of a civil case under the 2008 Wilberforce Amendments?

Eligibility Letters:

20. Does the VSC provide technical assistance to HHS?  We've been getting nationwide reports of denied eligibility letters for potential trafficked minors (per the TVPRA 2008 standard) for benefits.  It appears HHS is sub-contracting out the eligibility letter evaluations to outside consultants who lack training. These individuals ask extensive questions that aren’t necessary for determining that the applicant has potentially been trafficked and seem to emulate VSC-style adjudications. Can VSC help advise HHS that adjudication of a case is for VSC, and not HHS? 

U visa:

21. For individuals receiving deferred action due to the U cap, we have started to see Employment Authorization approvals for two-year periods. Is this standard practice now? (If so, thank you, it is very impractical to

have to keep track of many renewals on an annual basis).

22. Based on the current backlog of pending U applications, when do you think an individual receiving deferred action in April, 2015 will receive full U nonimmigrant status?

24. Since the U.S. Department of Labor recently announced they’re going to sign I-918 Supplement Bs using “other: forced labor,” as a qualifying crime, is USCIS going to provide technical assistance?

How will the VSC interpret this? In other words, will the VSC basically consider

this a synonym for trafficking, since forced labor is in the TVPA?

Or should USDOL be advised to categorize their “forced labor” determination as trafficking, peonage, or involuntary servitude instead?

25. For adjudications delayed because of the cap, what happens to derivatives abroad?

Are they protected from aging out? Is it looking as though they’ll need

to wait for years to come to the U.S. or will a parole process be implemented?

I-192 Waivers:

26. Is it necessary for a T/U applicant who is present in the U.S. with an expired H-2A visa to seek a waiver (via the I-192) of INA § 212(a)(7)(B)(i)(II), re nonimmigrants not in possession of a valid nonimmigrant visa or border crossing ID card at the time of application for admission? 

In other words, does “application for admission” refer to the current T/U application or the original application for admission under the H-2A?

Adjustment of Status:

27. Must applicants provide two passport photos for U (or T) Adjustment of Status? The photos we have been sending do not end up on the cards, anyway, because clients have photos taken at the ASC.

28. In terms of “early adjustment” for T’s, meaning the ability to apply before accruing three years of continuous physical presence, could USCIS coordinate with the USDOJ on the required letters and provide guidance to the field on this?

29. Why are “early adjustment ” applications taking longer to process than regular adjustment applications for T visa holders?

30. The I-914, Supplement B, Part B and C #7 ask if the investigation is complete and, if so, for the date completed. If this box is checked by law enforcement, is

a separate DOJ letter still required for “early” adjustment of status?

Wouldn't this signed certification from federal law enforcement containing this checked box be sufficient to request early adjustment without an additional letter verifying the same information?

31. For individuals who received T visas and qualified for the LEA cooperation exception (minors and trauma exception), what is the requirement for them to adjust status?  Do they have to wait a full three years?  There’s not really a possibility of obtaining a DOJ compliance letter, but could they adjust before waiting three years since their cooperation was not required for the T adjudication? This is especially important for minors who have T visas and need permanent residence to secure scholarships, financial aid, etc.

32. Order of Supporting Documents: in demonstrating continuous physical presence, would the VSC prefer that we order the documents purely chronologically, or broken down into category of documents (W-2s, leases, pay statements, cable bills, etc.)?

Employment Authorization Renewals:

33. When submitting an EAD renewal, is it necessary to include the letter that comes with the previous EAD? When we do so, it does not seem to affect the processing time.

Other:

Please tell us anything else you would like us to know!