Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for “T” Nonimmigrant Status, 92266-92313 [2016-29900]

Download as PDF 92266 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts 212, 214, 245, and 274a [CIS No. 2507–11; DHS Docket No. USCIS– 2011–0010] RIN 1615–AA59 Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for ‘‘T’’ Nonimmigrant Status U.S. Citizenship and Immigration Services, Department of Homeland Security. ACTION: Interim rule with request for comments. AGENCY: The Department of Homeland Security (DHS) is amending its regulations governing the requirements and procedures for victims of human trafficking seeking T nonimmigrant status. The Secretary of Homeland Security (Secretary) may grant T nonimmigrant status (commonly known as a ‘‘T visa’’) to aliens who are or were victims of severe forms of trafficking in persons, who are physically present in the United States on account of such trafficking, who have complied (unless under 18 years of age or unable to cooperate due to trauma) with any reasonable request by a Federal, State, or local law enforcement agency (LEA) for assistance in an investigation or prosecution of acts of trafficking in persons or the investigation of other crimes involving trafficking, and who would suffer extreme hardship involving unusual and severe harm if removed from the United States. In this interim rule, DHS is amending its regulations to conform with legislation enacted after the initial rule was published in 2002: the Trafficking Victims Protection Reauthorization Act of 2003 (TVPRA 2003), the Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA 2008), and Titles VIII and XII of the Violence Against Women Reauthorization Act of 2013 (VAWA 2013). DHS is also streamlining procedures, responding to public comments on the 2002 interim final rule, and providing guidance for the statutory requirements for T nonimmigrants. The intent is to make sure the T nonimmigrant status regulations are up to date and reflect USCIS adjudicative experience, as well as the input provided by stakeholders. DATES: Effective date. This rule is effective January 18, 2017. sradovich on DSK3GMQ082PROD with RULES5 SUMMARY: VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 Comment date. Written comments must be submitted on or before February 17, 2017. Comments on the form, form instructions, and information collection revisions in this interim rule must be submitted on or before January 18, 2017. ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS– 2011–0010, by one of the following methods: • Federal eRulemaking Portal: https:// www.regulations.gov. Follow the instructions for submitting comments. • Email: You may submit comments directly to U.S. Citizenship and Immigration Services (USCIS) by email at USCISFRComment@uscis.dhs.gov. Include DHS Docket No. USCIS–2011– 0010 in the subject line of the message. • Mail: Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529–2140. To ensure proper handling, please reference DHS Docket No. USCIS–2011–0010 on your correspondence. This mailing address may be used for paper, disk, or CD– ROM submissions. • Hand Delivery/Courier: Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529– 2140. Contact Telephone Number (202) 272–8377. FOR FURTHER INFORMATION CONTACT: Elizabeth Dallam, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529– 2099, telephone (202) 272–8377 (this is not a toll-free number). SUPPLEMENTARY INFORMATION: This supplementary information section is organized as follows: I. Public Participation II. Executive Summary A. Purpose of the Regulatory Action 1. Need for the Regulatory Action and How the Action Will Meet That Need 2. Statement of Legal Authority for the Regulatory Action B. Summary of the Major Provisions of the Rule 1. Statutory Changes 2. Discretionary Changes C. Costs and Benefits III. Background and Legislative Authority IV. Eligibility and Application Requirements, Procedures, and Changes in This Rule A. Eligibility Requirements for T Nonimmigrant Classification 1. Victim of a Severe Form of Trafficking in Persons PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 a. Definition of ‘‘Involuntary Servitude’’ b. Performing Labor, Services, or Commercial Sex Is Not Necessary c. Evidence of Victimization 2. Physical Presence on Account of Trafficking in Persons a. LEA Returns a Victim to the United States b. Victim Who Has Been Trafficked Abroad Is Allowed Entry Into the United States c. Removal of the ‘‘Opportunity To Depart’’ Requirement d. Evidence of Physical Presence on Account of Trafficking in Persons 3. Compliance With Any Reasonable Request a. Totality of Circumstances Test To Determine the ‘‘Reasonableness’’ of LEA Requests b. ‘‘Comparably-Situated Crime Victims’’ Standard c. Proper Standard is the Reasonableness of the LEA Request d. Minors Exempt From Compliance With Any Reasonable Request e. Evidence of Compliance With Any Reasonable Request f. Trauma Exception 4. Extreme Hardship Involving Unusual and Severe Harm Upon Removal B. Application Requirements 1. Filing the Application a. Filing Deadline b. Form-Related Changes c. Proof Required for Family Members of a Minor Applicant d. Referral to Law Enforcement and Department of Health and Human Services 2. Initial Evidence 3. Bona Fide Determinations 4. Derivative Family Members a. Definitions b. Eligibility of Certain Family Members 5. Age-Out Protection of Eligible Family Members a. Age-Out Protection for Child Principal To Apply for Eligible Family Members b. Age-Out Protection for Unmarried Sibling Derivative of Child Principal c. Age-Out Protection for Child Derivative d. Marriage of Eligible Family Members e. Evidence for Eligible Family Members C. Adjudication and Post-Adjudication 1. Prohibitions on Use of Information a. Applicability of Confidentiality Provisions b. Disclosure Required in Relation to Criminal Prosecution c. Use of Information on the T Nonimmigrant Status Application 2. Waivers of Grounds of Inadmissibility a. Waiver Authority for T Nonimmigrants b. Criminal Grounds of Inadmissibility c. Waivers Relating to Adjustment of Status d. Waivers of Inadmissibility Grounds Related to the Trafficking Victimization e. Requesting a Waiver 3. Decisions 4. Benefits 5. Duration of Status 6. Extension of Status a. Extension of Status for Law Enforcement Need b. Extension of Status for Exceptional Circumstances E:\FR\FM\19DER5.SGM 19DER5 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES5 c. Extension of Status While an Application for Adjustment of Status Is Pending 7. Waiting List 8. Revocation a. Streamlining Revocation Based on Violation of the Requirement of T Nonimmigrant Status b. Revocation Based on Information Provided by Law Enforcement c. Revocation of Derivative Nonimmigrant Status 9. Technical Fix for T Nonimmigrants Residing in the CNMI D. Filing and Biometric Services Fees V. Regulatory Requirements A. Administrative Procedure Act 1. Statutorily Required Changes 2. ProceduraL Changes Only 3. Logical Outgrowth 4. Contrary to the Public Interest B. Unfunded Mandates Reform Act of 1995 C. Small Business Regulatory Enforcement Fairness Act of 1996 D. Executive Orders 12866 and 13563 1. Summary 2. Background 3. Changes Implemented in this Interim Rule a. Statutory Provisions b. Discretionary Changes 4. Benefits a. Benefits of Statutory Provisions b. Benefits of Discretionary Changes 5. Costs a. Costs of Statutory Provisions b. Costs of Discretionary Changes c. Costs to the Federal Government E. Regulatory Flexibility Act F. Executive Order 13132 G. Executive Order 12988 H. Family Assessment I. Paperwork Reduction Act I. Public Participation DHS invites interested persons to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this interim rule. DHS also invites comments that relate to the economic, environmental, or federalism effects that might result from this interim rule. DHS particularly encourages comments from individuals, organizations, and agencies with direct experience handling T nonimmigrant cases or issues. Comments that will provide the most assistance to DHS in developing these procedures will reference a specific portion of the interim rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. Instructions: All submissions received must include the agency name (U.S. Citizenship and Immigration Services) and DHS Docket No. USCIS–2011–0010 for this rulemaking. All comments received will be posted without change to https://www.regulations.gov, including any personal information provided. See the ADDRESSES section above for VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 information on how to submit comments. Those wishing to submit anonymous comments should do so electronically at https:// www.regulations.gov. Docket: For access to the docket to read background documents or comments received go to https:// www.regulations.gov. II. Executive Summary A. Purpose of the Regulatory Action The T nonimmigrant status regulations—which include eligibility criteria, application process, evidentiary standards, and benefits associated with the T nonimmigrant classification (commonly known as the ‘‘T visa’’ 1)— have been in effect since a 2002 interim rule. New Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for ‘‘T’’ Nonimmigrant Status, 67 FR 4784 (Jan. 31, 2002) (2002 interim rule). Since the publication of that interim rule, the public has submitted comments on the regulations and Congress has enacted numerous pieces of related legislation. DHS is responding to the public comments on the 2002 interim rule, clarifying requirements based on experience operating the program for more than 14 years, and amending provisions as required by legislation. 1. Need for the Regulatory Action and How the Action Will Meet That Need Statutory amendments to the Trafficking Victims Protection Act of 2000 (TVPA) require that DHS amend and clarify the eligibility and application requirements to conform to current law. In addition, DHS needs to respond to public comments on the 2002 interim rule. DHS accomplishes both actions in this interim rule. 2. Statement of Legal Authority for the Regulatory Action The TVPA authorizes various means to combat trafficking in persons, 1 T nonimmigrant status is known as the ‘‘T visa’’ colloquially, however ‘‘T visa’’ is not an entirely accurate term in light of the statutory scheme. Principal victims granted T–1 nonimmigrant status may seek derivative T nonimmigrant status for certain family members. 8 CFR 214.11(o)(1). Some of these family members may reside outside the United States and, if eligible, can join the victim in the United States. Before family members with approved derivative T nonimmigrant status can enter the United States, the family members must first undergo processing with the Department of State at a U.S. Embassy or Consulate to obtain a T visa abroad. This is known as consular processing. USCIS will decide on the basis of the application filed by the principal T–1 nonimmigrant whether an overseas family member qualifies for derivative T nonimmigrant status. The Department of State will then separately determine that family member’s eligibility to receive a visa in order to enter the United States. PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 92267 including tools to effectively prosecute and punish perpetrators of trafficking in persons, and protection to victims of trafficking through immigration relief and access to Federal public benefits. See Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), div. A, TVPA, Public Law 106–386, 114 Stat. 1464 (Oct. 28, 2000), as amended by TVPRA 2003, Public Law 108–193, 117 Stat. 2875 (Dec. 19, 2003); VAWA 2005, Public Law 109–162, 119 Stat. 2960 (Jan. 5, 2006); Technical Corrections to VAWA 2005, Public Law 109–271, 120 Stat. 750 (Aug. 12, 2006); TVPRA 2008, Public Law 110–457, 122 Stat. 5044 (Dec. 23, 2008), and VAWA 2013, Public Law 113–4, titles viii, xii, 127 Stat. 54 (Mar. 7, 2013); Justice for Victims of Trafficking Act of 2015 (JVTA), Public Law 114–22, 129 Stat. 227 (May 29, 2015). The Immigration and Nationality Act of 1952 (INA), as amended, permits the Secretary to grant T nonimmigrant status to aliens who are or were victims of a severe form of trafficking in persons, who have complied with any reasonable request by an LEA for assistance in an investigation or prosecution of acts of trafficking in persons or the investigation of crime where acts of trafficking are at least one central reason for the commission of that crime, or who are exempt from this compliance requirement, and who would suffer extreme hardship involving unusual and severe harm if removed from the United States. See INA section 101(a)(15)(T), 8 U.S.C. 1101(a)(15)(T). B. Summary of the Major Provisions of the Rule 1. Statutory Changes The legislative changes to the T nonimmigrant statute addressed in this interim rule are as follows: • Expanding the definition and discussion of LEA to include State and local law enforcement agencies (added by VAWA 2005). See INA section 101(a)(15)(T)(i)(III)(aa), 8 U.S.C. 1101(a)(15)(T)(i)(III)(aa); new 8 CFR 214.11(a). • Raising the age at which the applicant must comply with any reasonable request by an LEA for assistance in an investigation or prosecution of acts of trafficking in persons, from 15 years to 18 years of age (added by TVPRA 2003). See INA section 101(a)(15)(T)(i)(III)(cc), 8 U.S.C. 1101(a)(15)(T)(i)(III)(cc); new 8 CFR 214.11(b)(3)(i) and (h)(4)(ii). • In cases where the applicant is unable, due to physical or psychological trauma, to comply with any reasonable request by an LEA, exempting the E:\FR\FM\19DER5.SGM 19DER5 sradovich on DSK3GMQ082PROD with RULES5 92268 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations applicant from the requirement to comply (added by TVPRA 2008). See INA section 101(a)(15)(T)(i)(III)(bb), 8 U.S.C. 1101(a)(15)(T)(i)(III)(bb); new 8 CFR 214.11(b)(3)(ii) and (h)(4)(i). • Expanding the regulatory definition of physical presence on account of trafficking to include those whose entry into the United States was for participation in investigative or judicial processes associated with an act or a perpetrator of trafficking (added by TVPRA 2008). See INA section 101(a)(15)(T)(i)(II), 8 U.S.C. 1101(a)(15)(T)(i)(II); new 8 CFR 214.11(b)(2) and (g)(1). • Allowing principal applicants under 21 years of age to apply for derivative T nonimmigrant status for unmarried siblings under 18 years and parents as eligible derivative family members (added by TVPRA 2003). See INA section 101(a)(15)(T)(ii)(I), 8 U.S.C. 1101(a)(15)(T)(ii)(I); new 8 CFR 214.11(k)(1)(ii). • Providing age-out protection for a principal applicant’s eligible family members under 21 years of age (added by TVPRA 2003). See INA section 214(o)(4), 8 U.S.C. 1184(o)(4); new 8 CFR 214.11(k)(5)(ii). • Providing age-out protection for principal applicants under 21 years of age (added by TVPRA 2003). See INA section 214(o)(5), 8 U.S.C. 1184(o)(5); new 8 CFR 214.11(k)(5)(iii). • Allowing principal applicants of any age to apply for derivative T nonimmigrant status for unmarried siblings under 18 years of age and parents as eligible family members if the family member faces a present danger of retaliation as a result of the principal applicant’s escape from a severe form of trafficking or cooperation with law enforcement (added by TVPRA 2008). See INA section 101(a)(15)(T)(ii)(III), 8 U.S.C. 1101(a)(15)(T)(ii)(III); new 8 CFR 214.11(k)(1)(iii) and (k)(5)(iv). • Allowing principal applicants of any age to apply for derivative T nonimmigrant status for children (adult or minor) of the principal’s derivative family members if the derivative’s child faces a present danger of retaliation as a result of the principal’s escape from a severe form of trafficking or cooperation with law enforcement (added by VAWA 2013). See INA section 101(a)(15)(T)(ii)(III), 8 U.S.C. 1101(a)(15)(T)(ii)(III); new 8 CFR 214.11(k)(1)(iii). • Permitting all derivative T nonimmigrants, if otherwise eligible, to apply for adjustment of status under INA section 245(l), 8 U.S.C. 1255(l). See new 8 CFR 245.23(b)(2). • Removing the requirement that eligible family members must face VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 extreme hardship if the family member is not admitted to the United States or was removed from the United States (removed by VAWA 2005). See previous INA section 101(a)(15)(T)(ii), 8 U.S.C. 1101(a)(15)(T)(ii); 8 CFR 214.11(o)(1)(ii) • Exempting T nonimmigrant applicants from the public charge ground of inadmissibility (added by TVPRA 2003). See INA section 212(d)(13)(A), 8 U.S.C. 1182(d)(13)(A); new 8 CFR 212.16(b). • Limiting duration of T nonimmigrant status to 4 years but providing extensions for LEA need, for exceptional circumstances, and for the pendency of an application for adjustment of status (VAWA 2005 and TVPRA 2008). See INA section 214(o)(7)(B), 8 U.S.C. 1184(o)(7)(B); new 8 CFR 214.11(c)(1) and (l). • Implementing a technical fix to clarify that presence in the Commonwealth of the Northern Mariana Islands after being granted T nonimmigrant status qualifies toward the requisite physical presence requirement for adjustment of status (added by VAWA 2013). See VAWA 2013, tit. viii, section 809; section 705(c) of the Consolidated Natural Resources Act of 2008 (CNRA), Title VII, Public Law 110–229, 122 Stat. 754 (2008); new 8 CFR 245.23(a)(3)(ii). • Conforming the regulatory definition of sex trafficking to the revised statutory definition in section 103(10) of the TVPA (22 U.S.C. 7102(10)), as amended by section 108(b) of the JVTA, 129 Stat. 239. See new 8 CFR 214.11(a). 2. Discretionary Changes In addition to the necessary statutory changes, DHS makes the following changes and clarifications related to the T nonimmigrant classification in this interim rule: • Specifies how USCIS will exercise its waiver authority with respect to criminal inadmissibility grounds; new 8 CFR 212.16(b)(3). • Discontinues the practice of weighing evidence as primary and secondary in favor of an ‘‘any credible evidence’’ standard; 8 CFR 214.11(f); new 8 CFR 214.11(d)(2)(ii) and (3). • Provides guidance on the definition of ‘‘severe form of trafficking in persons’’ where an individual has not performed labor or services, or a commercial sex act; new 8 CFR 214.11(f)(1). • Removes the current regulatory ‘‘opportunity to depart’’ requirement for those who escaped traffickers before law enforcement became involved; 8 CFR 214.11(g)(2). PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 • Addresses situations where trafficking has occurred abroad, but the applicant can potentially meet the physical presence requirement; new 8 CFR 214.11(g)(3). • Eliminates the requirement that an applicant provide three passport-style photographs; 8 CFR 214.11(d)(2)(ii); new 8 CFR 214.11(d)(4). • Removes the filing deadline for applicants victimized prior to October 28, 2000; 8 CFR 214.11(d)(4). • Announces forthcoming updates to the forms used to apply for T nonimmigrant status. • Updates the regulation to reflect the creation of DHS, and to implement current standards of regulatory organization, plain language, and USCIS efforts to transform its customer service practices. C. Costs and Benefits With this interim rule, DHS incorporates in its regulations several statutory provisions associated with the T nonimmigrant status that have been enacted since 2002 and that DHS already has been implementing. While codifying these changes in the DHS regulations will not result in additional quantitative costs or benefits, ensuring that DHS regulations are consistent with applicable legislation will provide qualitative benefits. In addition, DHS will implement changes made necessary by VAWA 2013, and other discretionary changes. DHS estimates the changes made in this interim rule will result in the following costs: • A per application opportunity cost for the T–1 principal alien of $33.92 to complete and submit the Application for Family Member of T–1 Recipient, Form I–914 Supplement A, in order to apply for children (adult or minor) of the principal’s derivative family members if the derivative’s child faces a present danger of retaliation as a result of the principal’s escape from a severe form of trafficking and/or cooperation with law enforcement. The children of the principal’s derivative relatives will be admitted under the T–6 classification. DHS has no basis to project the population of children of derivative family members that may be eligible for the new T–6 nonimmigrant classification. • An individual total cost of $89.70 for applicants who become eligible to apply for principal T–1 nonimmigrant status when the filing deadline for those trafficked before October 28, 2000 is removed. The total cost includes the opportunity cost associated with filing the Application for T Nonimmigrant Status, Form I–914, and the time and travel costs associated with submitting E:\FR\FM\19DER5.SGM 19DER5 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations biometrics. If the applicant includes the Declaration of Law Enforcement Officer for Victim of Trafficking in Persons, Form I–914 Supplement B in the application, there is an opportunity cost of $149.70 for the law enforcement worker that completes that form. DHS has no way of predicting how many individuals physically present in the United States may now be eligible for T–1 nonimmigrant status as a result of removing the filing deadline. • An individual total cost of $89.70 for those applicants trafficked abroad that will now become eligible to apply for T nonimmigrant status due to DHS’s expanded interpretation of the physical presence requirement. As previously described, the total cost includes both the opportunity of time cost and estimated travel cost incurred with filing Form I–914 and submitting biometrics. If the applicant includes the Declaration of Law Enforcement Officer for Victim of Trafficking in Persons, Form I–914 Supplement B in the application, there is an opportunity cost of $149.70 for the law enforcement worker that completes that form. DHS is unable to project the size of this new eligible population. Based on recent filing volumes, DHS estimates total cost savings of $56,130 for T nonimmigrant applicants and their eligible family members as a result of no longer being required to submit three passport-style photographs with their T nonimmigrant applications. In addition, the interim rule will provide various qualitative benefits for victims of trafficking, their eligible family members, and law enforcement agencies investigating trafficking incidents. These qualitative benefits result from making the T nonimmigrant classification more accessible, reducing some burden involved in applying for this status in certain cases, and clarifying the process by which DHS adjudicates and administers the T nonimmigrant benefit. sradovich on DSK3GMQ082PROD with RULES5 D. Public Comments DHS welcomes public comment on all aspects of this interim final rule. III. Background and Legislative Authority Congress created the T nonimmigrant status in the TVPA. See Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), div. A, TVPA, Public Law 106–386, 114 Stat. 1464 (Oct. 28, 2000). Congress has since amended the TVPA, including the T nonimmigrant status provisions, several times: TVPRA 2003, Public Law 108–193, 117 Stat. 2875 (Dec. 19, 2003); VAWA 2005, Public Law 109–162, 119 Stat. 2960 VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 (Jan. 5, 2006); Technical Corrections to VAWA 2005, Public Law 109–271, 120 Stat. 750 (Aug. 12, 2006); TVPRA 2008, Public Law 110–457, 122 Stat. 5044 (Dec. 23, 2008); VAWA 2013, Public Law 113–4, titles viii, xii, 127 Stat. 54 (Mar. 7, 2013); JVTA, Public Law 114– 22, 129 Stat. 227 (May 29, 2015). The TVPA and subsequent reauthorizing legislation provide various means to combat trafficking in persons, including tools to effectively prosecute and punish perpetrators of trafficking in persons, and protect victims of trafficking through immigration relief and access to federal public benefits. The T nonimmigrant status is one type of immigration relief available to victims of severe forms of trafficking in persons who assisted LEAs in the investigation or prosecution of the perpetrators of these crimes. The INA permits the Secretary to grant T nonimmigrant status to individuals who are or were victims of a severe form of trafficking in persons, who have complied with any reasonable request by an LEA for assistance in an investigation or prosecution of crime involving acts of trafficking in persons (or who are under 18 years of age or are unable to cooperate due to physical or psychological trauma).2 See INA Section 101(a)(15)(T)(i)(I), (III), 8 U.S.C. 1101(a)(15)(T)(i)(I), (III). Applicants for T nonimmigrant status must be physically present in the United States, American Samoa, or the Commonwealth of the Northern Mariana Islands, or at a port-of-entry thereto, on account of trafficking in persons, including physical presence on account of the alien having been allowed entry into the United States for participation in investigative or judicial processes associated with an act or a perpetrator of trafficking. See INA section 101(a)(15)(T)(i)(II), 8 U.S.C. 1101(a)(15)(T)(i)(II). In addition, an applicant must demonstrate that he or she would suffer extreme hardship involving unusual and severe harm if removed from the United States. See INA section 101(a)(15)(T)(i)(IV), 8 U.S.C. 1101(a)(15)(T)(i)(IV). T nonimmigrant status allows eligible individuals to remain in the United States for a period of not more than 4 years (with the possibility for extensions), receive work 2 The primary victim of trafficking is also referred to as the ‘‘principal T nonimmigrant’’ or ‘‘principal alien’’ and receives T–1 nonimmigrant status, if eligible. The principal alien may be permitted to apply for certain family members who are referred to as ‘‘eligible family members’’ or ‘‘derivative T nonimmigrants’’ and when approved those family members receive T–2, T–3, T–4, T–5, or T–6 nonimmigrant status. The term derivative is used in this context because the family member’s eligibility derives from that of the primary nonimmigrant. PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 92269 authorization, receive federal public benefits, and apply for derivative status for certain eligible family members. See INA section 101(a)(15)(T)(ii), 8 U.S.C. 1101(a)(15)(T)(ii); INA section 214(o), 8 U.S.C. 1184(o); 8 U.S.C. 1641(c)(4). On January 31, 2002, the former Immigration and Naturalization Service (INS) 3 published an interim final rule in the Federal Register titled New Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for ‘‘T’’ Nonimmigrant Status implementing the T nonimmigrant status provisions of the TVPA. 67 FR 4784. INS outlined the eligibility criteria, application process, evidentiary standards, and benefits associated with the T nonimmigrant status. Id. Most of the provisions in this rule have been in effect since the 2002 interim rule and have been the subject of extensive public comment.4 In this rule, DHS is responding to the 14 public submissions with comments on multiple provisions of the 2002 interim rule. No comments were received regarding the procedural aspects of the 2002 interim rule or the good cause arguments put forth in the rule for bypassing notice and comment. As noted above, DHS also welcomes additional input by stakeholders in response to this action. As explained further in the Administrative Procedure Act section of this rule, DHS is publishing this rule as an interim final rule and requesting additional comment on all aspects of this rulemaking. IV. Eligibility and Application Requirements, Procedures, and Changes in This Rule DHS provides a summary of the changes made in this rule in Section II.B. of this preamble above. In this section, DHS describes the changes in greater detail. The discussion is organized generally in the same order as the relevant regulatory provisions in this interim rule, and proceeds as follows: 3 Various functions formerly performed by the INS, or otherwise vested in the Attorney General, were transferred to DHS in March 2003. See 6 U.S.C. 251, 271(b), 557; 6 U.S.C. 542 note; 8 U.S.C. 1103(a)(1), (g), 8 U.S.C. 1551 note. Even though INS published the 2002 interim rule, this rule refers to DHS because DHS is now the regulatory actor. 4 Since the publication of the 2002 interim rule, DHS has amended the core regulatory provision relating to T nonimmigrant status, 8 CFR 214.11, multiple times. Most of these changes have been minor conforming changes as parts of other actions. See, e.g., Removal of the Standardized Request for Evidence Processing Timeframe, 72 FR 19100, 19107 (Apr. 17, 2007); Adjustment of Status to Lawful Permanent Resident for Aliens in T or U Nonimmigrant Status, 73 FR 75558 (Dec. 12, 2008); Application of Immigration Regulations to the Commonwealth of the Northern Mariana Islands, 74 FR 55738 (Oct. 28, 2009). E:\FR\FM\19DER5.SGM 19DER5 92270 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES5 A. Eligibility Requirements for T Nonimmigrant Classification (including core eligibility factors such as victimization, physical presence on account of trafficking in persons, and extreme hardship involving unusual and severe harm upon removal), B. Application Requirements (include filing deadlines, bona fide determinations, and processes and eligibility for derivative family members), C. Adjudication and PostAdjudication (including waivers of inadmissibility, confidentiality requirements, and duration of status), and D. Filing and Biometric Services Fees. Throughout the discussion, DHS addresses and responds to the public comments received in connection with the 2002 interim rule. A. Eligibility Requirements for T Nonimmigrant Classification There are four statutory eligibility requirements for T nonimmigrant status. See INA section 101(a)(15)(T), 8 U.S.C. 1101(a)(15)(T). To be eligible, the applicant must meet the following criteria: • The applicant must be or have been a victim of a severe form of trafficking in persons, as defined in 22 U.S.C. 7102 (section 103 of the TVPA); • The applicant must be physically present in the United States, American Samoa, the Commonwealth of the Northern Mariana Islands (CNMI),5 or at a port-of-entry thereto, on account of such trafficking, including physical presence based on the applicant having been allowed to enter the United States to participate in investigative or judicial processes associated with an act or a perpetrator of trafficking; and • The applicant must meet one of the following criteria: D Has complied with any reasonable request for assistance in the Federal, State, or local investigation or prosecution of acts of trafficking or the investigation of a crime where acts of trafficking are at least one central reason for the commission of that crime; or D Is under 18 years of age; or D Is unable to cooperate with a request due to physical or psychological trauma; and • The applicant would suffer extreme hardship involving unusual and severe harm upon removal from the United States. 5 The federalization of the CNMI immigration law took place on November 28, 2009. See Consolidated Natural Resources Act of 2008 (CNRA), Public Law 110–229, title VII, 122 Stat. 754 (2008). This effectively replaced the CNMI’s immigration laws with the INA and other applicable United States immigration laws, with few exceptions. VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 Below DHS addresses each of these requirements in turn. 1. Victim of a Severe Form of Trafficking in Persons First, an individual applying for classification as a T nonimmigrant must demonstrate that he or she is or was a victim of a severe form of trafficking in persons. See INA section 101(a)(15)(T)(i)(I), 8 U.S.C. 1101(a)(15)(T)(i)(I). In the 2002 interim rule, DHS defined ‘‘victim of a severe form of trafficking in persons’’ consistent with the statutory definitions in TVPA section 103(9) and (14), 22 U.S.C. 7102(9), (14). Under the interim rule, an applicant must show that he or she is a victim of one or more of the following: • Sex trafficking in which a commercial sex act is induced by force, fraud, or coercion; • Sex trafficking in which the person induced to perform such an act is under the age of 18; 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. See 8 CFR 214.11(a); see also TVPA section 103(9), 22 U.S.C. 7102(9). DHS received public comments on the definition of ‘‘victim of a severe form of trafficking in persons,’’ and responds as follows: • DHS clarifies that the term ‘‘involuntary servitude,’’ as used in 22 U.S.C. 7102(9), encompasses the use of psychological coercion. See 8 CFR 214.11(a). • DHS clarifies that an individual need not perform labor, services, or a commercial sex act to meet the definition of a ‘‘victim of a severe form of trafficking in persons.’’ New 8 CFR 214.11(f)(1). • DHS explains how a victim can meet the evidentiary burden to show victimization, even when the victim did not perform labor, services or a commercial sex act. In order to simplify the regulatory text, DHS used and defined the term ‘‘victim’’ in this rule as shorthand to refer to ‘‘an alien who is or has been subject to a severe form of trafficking in persons,’’ as defined by TVPA section 103 (22 U.S.C. 7102). See 8 CFR 214.11(a). a. Definition of ‘‘Involuntary Servitude’’ DHS received four comments about the definition of ‘‘involuntary servitude’’ in 8 CFR 214.11(a). Commenters maintained that the PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 definition appeared to be too narrow because it cited United States v. Kozminski, 487 U.S. 931, 952 (1988). In Kozminski, the Supreme Court had occasion to construe ‘‘involuntary servitude’’ as used in the criminal provisions at 18 U.S.C. 241 (conspiracy to interfere with free exercise of constitutional rights, including Thirteenth Amendment guarantee against involuntary servitude) and 1584 (knowingly and willfully holding to involuntary servitude . . . any other person for any term). The Court, considering the historical context of the term as used in those criminal provisions, held that involuntary servitude excluded compulsion by psychological coercion. The commenters stated that Congress intended the definition of involuntary servitude as used in 22 U.S.C. 7102(9) and defined in part in 22 U.S.C. 7102(6), to go beyond the Kozminski construction, and recommended striking the citation from the definition. We agree. In the 2002 interim rule, DHS did not intend to exclude psychological coercion from the definition of involuntary servitude. The citation to Kozminski in the definition was qualified by the word ‘‘includes,’’ and therefore did not limit the definition of involuntary servitude by excluding psychological coercion. Additionally, in the 2002 interim rule’s preamble, DHS specifically said that the TVPA definition of ‘‘forced labor’’ was meant to ‘‘expand[] the definition of involuntary servitude contained in Kozminksi.’’ 67 FR 4784, at 4786. To avoid the potential for confusion, DHS is removing the citation to Kozminski from the definition of ‘‘involuntary servitude.’’ b. Performing Labor, Services, or Commercial Sex Is Not Necessary In this interim rule, DHS is clarifying that an individual need not actually perform labor, services, or a commercial sex act to meet the definition of a ‘‘victim of a severe form of trafficking in persons.’’ See new 8 CFR 214.11(f)(1). In the 2002 interim rule, DHS explained that it interpreted the term ‘‘severe form of trafficking in persons’’ to require a particular means (force, fraud, or coercion) and a particular end (sex trafficking, involuntary servitude, peonage, debt bondage, or slavery). See 67 FR at 4786 (construing the statutory definition at 22 U.S.C. 7102(9) and (14)). However, DHS did not discuss how it would address cases involving the means of force, fraud, or coercion and the intended ends of sex trafficking, involuntary servitude, peonage, debt bondage, or slavery, where those illicit E:\FR\FM\19DER5.SGM 19DER5 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES5 ends are never realized. This would include, for example, a situation where the victim was recruited and came to the United States through force, fraud or coercion for the purpose of a commercial sex act, but the victim was rescued or escaped before performing a commercial sex act. The definition of ‘‘severe form of trafficking in persons’’ at 22 U.S.C. 7102(9) includes the phrase ‘‘for the purpose of’’ subjection to a form of human trafficking; i.e., the applicant may establish that he or she was recruited, transported, harbored, provided, or obtained through force, fraud, or coercion for the purpose of subjecting him or her to a commercial sex act, involuntary servitude, peonage, debt bondage, or slavery.6 The statutory 6 Note that the labor trafficking prong of the statutory definition of ‘‘severe forms of trafficking in persons’’ at 22 U.S.C. 7102(9)(B) directly uses the phrase ‘‘for the purpose of,’’ whereas the sex trafficking prong of the statutory definition does not. The sex trafficking prong, however, incorporates the definition of ‘‘sex trafficking’’ at 22 U.S.C. 7102(10) (‘‘The term ‘sex trafficking’ means the recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purpose of a commercial sex act’’), which employs the phrase ‘‘for the purpose of.’’ Although the statute requires the commercial sex act to be ‘‘induced,’’ the statute does not expressly provide that the inducement must be successful in order for a victim to satisfy the definition, nor does the term ‘‘induce’’ necessarily require that the desired end be achieved. See, e.g., United States v. Murrell, 368 F.3d 1283, 1287 (11th Cir. 2004) (‘‘We have previously held that the term ‘induce’ in [18 U.S.C.] § 2422 is not ambiguous and has a plain and ordinary meaning. . . . By negotiating with the purported father of a minor, Murrell attempted to stimulate or cause the minor to engage in sexual activity with him. Consequently, Murrell’s conduct fits squarely within the definition of ‘induce.’ ’’) (citations omitted); cf. NLRB v. Associated Musicians of N.Y., 226 F.2d 900, 904 (2d Cir. 1955) (holding that ‘‘common understanding of the meaning’’ of ‘‘induce,’’ as used in the National Labor Relations Act, does not require the inducement to be successful). Moreover, the two prongs of the statutory definition should be read to fit harmoniously as part of ‘‘a symmetrical and coherent statutory scheme.’’ FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000). We can discern neither a logical reason nor any congressional design to designate inchoate labor trafficking offenses as ‘‘severe forms of trafficking in persons,’’ but not so designate inchoate sex trafficking offenses. To the extent there is ambiguity in the statutes, it is reasonable for the Department to adopt the more expansive conception of ‘‘victim’’ for purposes of the T visa regime given the protection and humanitarian aims of the statutory scheme. Cf., e.g., INS v. CardozaFonseca, 480 U.S. 421, 449 (1987) (construing ‘‘any lingering ambiguities’’ in Refugee Act of 1980 so as to ‘‘increase [ ] . . . flexibility’’ in protecting refugees in light of statute’s humanitarian aims); Flores v. USCIS, 718 F.3d 548, 554 (6th Cir. 2013) (observing that court’s more expansive reading of temporary protected status (TPS) provision is supported by clear congressional intent ‘‘to protect a class of people . . . due to an extraordinary circumstance’’); Akhtar v. Burzynski, 384 F.3d 1193, 1200 (9th Cir. 2004) (observing that ‘‘[i]n determining congressional intent’’ when seeking to resolve ambiguities in LIFE Act (‘‘V visa’’ program), VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 definition does not require a victim to have actually performed labor, services, or a commercial sex act to be considered a victim of a severe form of trafficking, for T nonimmigrant status eligibility purposes. The TVPA did not elaborate on the term ‘‘for the purpose of subjection to’’ a form of human trafficking. We therefore consider common definitions of the key terms: • Purpose: ‘‘something set up as an object or an end to be attained.’’ See Merriam-Webster Online Dictionary, 2011, https://merriam-webster.com. Also defined as ‘‘an objective, goal, or end; specifically the business activity that a corporation is chartered to engage in.’’ See Black’s Law Dictionary (7th ed. 2000). • Subjection: ‘‘the act of subjecting someone to something.’’ See Black’s Law Dictionary (7th ed. 2000). ‘‘Subjecting’’ is also defined as ‘‘bringing under control or dominion’’ or ‘‘causing or forcing to undergo or endure.’’ See Merriam-Webster Online Dictionary, 2011, https://merriamwebster.com. The concept of ‘‘for the purpose of’’ speaks to the process of attaining an object or end or the intention to attain something, but not the end result. The inclusion of the ‘‘for the purpose of’’ language may reasonably be construed as encompassing situations where labor or commercial sex act has not occurred. Furthermore, Congress amended the federal criminal code to punish attempts to violate any trafficking-related criminal provision in the same manner as a completed act of trafficking would be punished. See TVPA section 112; 18 U.S.C. 1594. The criminal code thus specifically allows for attempts and conspiracy to commit trafficking to be prosecuted. Id. The T nonimmigrant status was intended to assist LEAs and provide a tool to, in part, allow for prosecution and stop the traffickers from continuing to enslave human beings. See TVPA section 102. Congress intended to provide an incentive for victims to report these crimes by providing for an immigration benefit connected to assistance to LEAs. Id. If victims who have been recruited, harbored, transported, provided, or obtained for the purposes of trafficking (or patronized or solicited in the case of sex trafficking) and have not yet performed any labor, services, or commercial sex acts are not eligible for T nonimmigrant status, Congress’s ‘‘we should adhere to the general rule of construction that when the legislature enacts an ameliorative rule designed to forestall harsh results, the rule will be interpreted and applied in an ameliorative fashion’’) (quotations marks omitted). PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 92271 intent in the TVPA to prosecute traffickers would be thwarted. Such an interpretation would hinder victims from coming forward to report trafficking to LEAs and assist with investigations or prosecutions. This could amount to a chilling effect on LEAs’ ability to investigate and prosecute trafficking-related crimes. Since the 2002 interim rule, USCIS has seen far fewer filings than expected. However, based on the Federal Government estimates, the small number of filings is not due to a correspondingly small number of victims in the United States. See U.S. Department of State, Trafficking in Persons Report (June 2010). Victims already often find it difficult to report trafficking and work with law enforcement; excluding an entire class of potential victims from T nonimmigrant eligibility could thwart the purpose of the visa and hinder prosecutions. A narrow interpretation would also seem to punish a victim who was rescued by an LEA or escaped on their own before any labor, services or commercial sex acts were performed. That result is illogical and inconsistent with Congressional intent. Therefore, those who have been recruited, harbored, transported, provided, or obtained for the purposes of trafficking (or patronized or solicited in the case of sex trafficking) are eligible for T nonimmigrant status in this rule, irrespective of the actual performance of any labor, services or commercial sex acts. Below, DHS includes a discussion of how victims can meet the evidentiary burden to show victimization when they did not perform labor, services or a commercial sex act. c. Evidence of Victimization An applicant can meet the victimization requirement in a number of ways. In the 2002 interim rule, DHS required the submission of primary or secondary evidence to establish victimization. See 8 CFR 214.11(f). Primary evidence of victimization included an LEA endorsement on the Declaration of a Law Enforcement Officer for Victim of Trafficking in Persons, Form I–914 Supplement B to the Application for T Nonimmigrant Status,7 Form I–914, and a grant of Continued Presence from U.S. Immigration and Customs Enforcement (ICE) under 28 CFR 1100.35. Secondary evidence included any credible evidence that demonstrated that the applicant is or has been a victim of a 7 Currently USCIS Form I–914. Available online at https://www.uscis.gov/files/form/i-914.pdf. E:\FR\FM\19DER5.SGM 19DER5 sradovich on DSK3GMQ082PROD with RULES5 92272 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations severe form of trafficking in persons, including evidence that explained the nonexistence or unavailability of the primary evidence. As discussed later in this preamble, DHS received comments suggesting that the interim rule made the LEA endorsement mandatory because it was ‘‘primary’’ evidence. Commenters also thought the LEA endorsement created an imbalance between the needs of law enforcement and the rights of victims. DHS amends the regulations in this rule to discontinue giving the two types of evidence different and unequal weight. See new 8 CFR 214.11(d)(3). Under new 8 CFR 214.11(d)(2)(ii), USCIS will accept any credible evidence of victimization, including but not limited to an LEA endorsement or a grant of Continued Presence. Following this change, USCIS will review applications where there is no LEA endorsement or grant of Continued Presence and give equal weight to other credible evidence based on the TVPA goals of protecting victims and enhancing law enforcement’s ability to investigate and prosecute human trafficking. See TVPA section 102. By making the LEA endorsement just one type of evidence of victimization, DHS clarifies a misconception of the LEA role in the T nonimmigrant process. An LEA does not determine if the victim meets the ‘‘severe form of trafficking definition’’ under Federal law. That is a determination that is made by USCIS. Except in instances of sex trafficking involving victims under 18 years of age, severe forms of trafficking in persons must involve both a particular means (force, fraud, or coercion) and a particular end (sex trafficking, involuntary servitude, peonage, debt bondage, or slavery) or intended particular end. See new 8 CFR 214.11(f)(1). The applicant must demonstrate both elements, regardless of the evidence submitted. As noted above, if the victim has not yet actually performed labor, services or a commercial sex act, he or she must establish that the trafficker acted ‘‘for the purpose of’’ subjecting the victim to sex trafficking, involuntary servitude, peonage, debt bondage, or slavery. See new 8 CFR 214.11(f)(1). The clearest evidence of this purpose would be that the victim did in fact perform labor, services, or commercial sex acts. In the absence of that evidence, a victim can submit any credible evidence from any reliable source that shows the purpose for which the victim was recruited, transported, harbored, provided or obtained. Examples of evidence that may be submitted to demonstrate the trafficker’s purpose include, but are not VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 limited to: Correspondence with the trafficker, evidence from an LEA, trial transcripts, court documents, police reports, news articles, and affidavits. See new 8 CFR 214.11(f)(1). 2. Physical Presence on Account of Trafficking in Persons Second, an alien applying for T nonimmigrant status must demonstrate physical presence in the United States, American Samoa, the Commonwealth of the Northern Mariana Islands, or at a port of entry thereto, on account of trafficking. See INA section 101(a)(15)(T)(i)(II), 8 U.S.C. 1101(a)(15)(T)(i)(II). In this interim rule, DHS makes the following changes and clarifications: • If a victim departed from the United States but the victim is allowed reentry into the United States to participate in an investigative or judicial process 8 associated with an act or a perpetrator of trafficking, USCIS will consider the victim to have met the physical presence requirement. New 8 CFR 214.11(g)(1)(v) and (2). • If the trafficking occurred abroad, but the victim is allowed entry into the United States for the purpose of participating in an investigative or judicial process associated with an act or a perpetrator of trafficking, USCIS will consider the victim to have met the physical presence requirement. New 8 CFR 214.11(g)(1)(v) and (3). • If the victim escaped a trafficker before an LEA became involved in the matter, DHS will no longer require the victim to show that he or she did not have a clear chance to leave the United States, or an ‘‘opportunity to depart.’’ New 8 CFR 214.11(g)(1). • Where a victim is allowed entry into the United States to participate in 8 Congress used different language in INA section 101(a)(15)(T)(i)(II), 8 U.S.C. 1101(a)(15)(T)(i)(II), than in INA section 214(o)(7)(B)(i), 8 U.S.C. 1184(o)(7)(B)(i), which specifically requires the LEA to ‘‘certify that the presence of the alien in the United States is necessary to assist in the investigation or prosecution of such activity.’’ Congress could have inserted ‘‘prosecution’’ in INA section 101(a)(15)(T)(i)(II), 8 U.S.C. 1101(a)(15)(T)(i)(II), as it did in INA section 101(a)(15)(T)(i)(III)(aa), 8 U.S.C. 1101(a)(15)(T)(i)(III)(aa), and INA section 214(o)(7)(B)(i), 8 U.S.C. 1184(o)(7)(B)(i), but did not. Instead it used the broader concept of ‘‘judicial processes.’’ DHS does not interpret the phrase ‘‘judicial processes’’ as referring only to criminal investigations or prosecutions, nor will DHS require LEA ‘‘sponsorship.’’ For example, if DHS were to parole a victim to pursue civil remedies associated with an act or perpetrator of trafficking, see, e.g., 18 U.S.C. 1595, the applicant may potentially meet this physical presence requirement. DHS does not interpret this provision to require the victim enter the United States through an LEA sponsored entry, such as Significant Public Benefit Parole, although practically use of this parole may be the most common way these applicants enter the United States. PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 an investigative or judicial process associated with an act or a perpetrator of trafficking, the victim must show documentation of entry through a legal means such as parole and must submit evidence that the entry is for the purpose of participation in investigative or judicial processes associated with an act or perpetrator of trafficking. New 8 CFR 214.11(g)(3). DHS discusses each change in turn below. a. LEA Returns a Victim to the United States DHS received six comments suggesting that if a victim leaves the United States and then returns to the United States for an investigation or prosecution, USCIS should consider the victim to have met the physical presence requirement. DHS agrees that victims who left but who are allowed valid reentry into the United States for the purposes of an investigation or prosecution meet the physical presence requirement. Moreover, TVPRA 2008 amended section 101(a)(15)(T)(i)(II) of the INA, 8 U.S.C. 1101(a)(15)(T)(i)(II), to include physical presence on account of the victim having been allowed to enter the United States to participate in investigative or judicial processes associated with an act or perpetrator of trafficking. See TVPRA 2008 section 201(a)(1)(C). DHS codifies this change in this rule at new 8 CFR 214.11(b)(2) and 214.11(g)(1)(v). In the 2002 interim rule, DHS presumed that individuals who have traveled outside of the United States and then returned are not here on account of trafficking in persons. To overcome this presumption, an applicant must show that his or her presence in the United States is the result of continued victimization or a new incident of a severe form of trafficking in persons. See 8 CFR 214.11(g)(3). DHS clarifies in this rule that the presumption does not apply when the victim who previously left the United States is allowed reentry in order for the victim to participate in investigative or judicial processes associated with an act or a perpetrator of trafficking. See new 8 CFR 214.11(g)(2)(iii). b. Victim Who Has Been Trafficked Abroad Is Allowed Entry Into the United States The physical presence language introduced in TVPRA 2008 broadens the physical presence requirement. It applies not only to valid reentry to the United States as discussed above, but also to initial entry to the United States to participate in investigative or judicial processes associated with trafficking. E:\FR\FM\19DER5.SGM 19DER5 sradovich on DSK3GMQ082PROD with RULES5 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations For these types of cases, DHS has identified two primary examples where a victim may qualify for T nonimmigrant status: • When trafficking occurred in the United States or the victim was physically present in the United States on account of trafficking, but the victim has left the United States and is allowed valid reentry into the United States for participation in investigative or judicial processes associated with trafficking; or • When trafficking occurred outside the United States, but the victim is allowed valid entry into the United States in order to participate in investigative or judicial processes associated with trafficking. DHS anticipates limited types of cases when trafficking occurred outside the United States that could lead to eligibility for T nonimmigrant status. One type could be when criminal activities occur outside the United States, but the relevant statutes provide for extraterritorial jurisdiction, and the activity involved would meet the Federal definition of ‘‘severe forms of trafficking in persons.’’ Statutes establishing extraterritorial jurisdiction generally require some nexus between the criminal activity and the United States’ interests. For example, under 18 U.S.C. 2423(c), the United States has jurisdiction to investigate and prosecute cases involving citizens or nationals who engage in illicit sexual conduct outside the United States, such as sexually abusing a minor. This offense is referred to as ‘‘sex tourism.’’ Sex tourism often interplays with crimes of human trafficking. According to the Federal definition of ‘‘severe forms of trafficking in persons,’’ where a minor (i.e., a person under the age of 18) engages in a commercial sex act, that minor meets the definition without having to show force, fraud, or coercion. See TVPA section 103(9), 22 U.S.C. 7102(9). The TVPA definition of ‘‘commercial sex act’’ is any sex act on account of which anything of value is given to or received by any person. TVPA section 103(4), 22 U.S.C. 7102(4). Violations of the sex tourism statute could involve commercial sex acts involving a minor. Such a minor would also meet the Federal definition of a victim of ‘‘severe forms of trafficking in persons,’’ and if the victim is allowed valid entry into the United States in order to participate in investigative or judicial processes associated with trafficking, the victim may qualify for T nonimmigrant status. Even absent extraterritorial jurisdiction, there are other cases which could lead to eligibility for T nonimmigrant status when the VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 trafficking occurred outside the United States. DHS understands that the nature of human trafficking crimes often means that traffickers operate internationally and may commit crimes in a number of countries. If the victim is allowed valid entry into the United States in order to participate in investigative or judicial processes, the victim could potentially qualify for T nonimmigrant status. DHS notes that the victim would need to meet every eligibility requirement in order to qualify for T nonimmigrant status and DHS adjudicates every application on a case-by-case basis. Even before the statutory expansion of the physical presence requirement, it was possible that trafficking that occurred abroad could qualify a victim for T nonimmigrant status. INA section 101(a)(15)(T)(i)(II); 8 U.S.C. 1101(a)(15)(T)(i)(II), allows victims at a port of entry to qualify, so long as they can show that their presence at the port is on account of trafficking. This means that the recruitment, harboring, transportation, provision, or obtaining of a person for a severe form of trafficking that occurs abroad and results in the person’s presence at a port of entry of the United States qualifies a victim for T nonimmigrant status. INA section 101(a)(15)(T)(i)(II); 8 U.S.C. 1101(a)(15)(T)(i)(II). DHS notes that not every instance of trafficking occurring abroad would qualify a victim for T nonimmigrant status. The victim must establish that he or she is now in the United States or at a port of entry on account of trafficking or the victim was allowed valid entry into the United States to participate in a traffickingrelated investigation or a prosecution or other judicial process. If a victim of trafficking abroad makes his or her way to the United States and the reason is not related to or on account of the trafficking and the victim was not allowed valid entry to participate in an investigative or judicial process related to trafficking or a trafficker, this victim cannot meet the physical presence requirement and would not be eligible for T nonimmigrant status on account of that trafficking incident. c. Removal of the ‘‘Opportunity To Depart’’ Requirement DHS is also amending the former ‘‘opportunity to depart’’ aspect of the physical presence requirement. DHS provided in the 2002 interim rule that the general physical presence requirement can cover applicants who are currently being trafficked, were recently liberated from trafficking, or were subject to trafficking in the past. For those who escaped a trafficker before an LEA became involved, DHS PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 92273 required in the 2002 interim rule that the applicant show that, evaluated in light of the applicant’s circumstances, he or she did not have a clear chance to leave the United States, or an ‘‘opportunity to depart.’’ 8 CFR 214.11(g)(2). This requirement was intended to ensure that the applicant’s continuing presence in the United States is directly related to the trafficking. Most commenters on the subject of physical presence objected to USCIS requiring a victim liberated from traffickers to demonstrate that his or her continuing presence in the United States is directly related to the trafficking. Commenters also opposed the requirement that a victim who escaped the traffickers and remains in the United States must show he or she had no clear chance to leave, asserting it is burdensome, vague, and may frustrate congressional intent to protect victims. Although DHS has tempered this requirement by looking at the opportunity to depart in light of the individual’s circumstances such as trauma, injury, and lack of resources, DHS agrees that this requirement is unnecessary and may be counterproductive. DHS therefore is removing the requirement that an applicant must show that he or she did not have a clear chance to leave (i.e., ‘‘opportunity to depart’’) the United States. Notwithstanding this change, every applicant must still establish that they are physically present in the United States on account of trafficking. Section 101(a)(15)(T)(i)(II) of the INA, 8 U.S.C. 1101(a)(15)(T)(i)(II), requires that a victim be physically present ‘‘on account of such trafficking.’’ Unlike the requirement of victimization, which is phrased in both the present and past tense, the physical presence requirement is only phrased in the present tense. DHS interprets this language to require a consideration of the victim’s current situation, and a consideration of whether the victim can establish that his or her current presence in the United States is on account of trafficking. A victim who is liberated from trafficking is not exempt from the statutory requirement to show that his or her presence is on account of trafficking. Applicants who have not performed labor or services, or a commercial sex act also need to demonstrate physical presence in the United States on account of trafficking. E:\FR\FM\19DER5.SGM 19DER5 92274 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES5 d. Evidence of Physical Presence on Account of Trafficking in Persons For those victims demonstrating physical presence on account of ‘‘the alien having been allowed entry into the United States,’’ DHS interprets this language to require the victim’s entry through a lawful means. See INA section 101(a)(15)(T)(i)(II), 8 U.S.C. 1101(a)(15)(T)(i)(II); new 8 CFR 214.11(g)(3). The victim must provide evidence of the lawful entry. New 8 CFR 214.11(g)(3). DHS does not interpret the phrase ‘‘judicial processes’’ as referring only to criminal investigations or prosecutions, nor will DHS require LEA ‘‘sponsorship.’’ For example, if DHS were to parole a victim to pursue civil remedies associated with an act or perpetrator of trafficking, see, e.g., 18 U.S.C. 1595, the applicant may potentially meet this physical presence requirement. DHS does not interpret this provision to require the victim to enter the United States through an LEA sponsored entry, such as Significant Public Benefit Parole (SPBP). Practically, SPBP may be the most common way these applicants enter the United States, because United States law enforcement may investigate or prosecute the trafficking crime, and law enforcement could sponsor an individual for SPBP for access to United States courts that would likely have jurisdiction over the related trafficking incidents. In these cases, the victim is in the United States on account of trafficking because DHS facilitated the victim’s entry into the United States for participation in an investigation or prosecution. The lawful entry must be connected to the victim’s participation in an investigative or judicial process associated with an act or perpetrator of trafficking. The victim must include evidence of the lawful entry and of how he or she entered to participate in an investigative or judicial process associated with an act or perpetrator of trafficking. Evidence could include a Form I–914 Supplement B, or other evidence from an LEA to describe the victim’s participation. The victim can also provide other credible evidence, such as a personal statement, or attach supporting documentation. When the physical presence requirement is met by the victim’s entry into the United States for participation in investigative or judicial processes associated with an act or perpetrator of trafficking, the victim must still establish his or her eligibility for all the other requirements for T nonimmigrant status. The compliance with the any VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 reasonable request for assistance requirement would not be met simply by the entry into the United States with the intent to assist the LEA, but by the victim actually complying with any reasonable request by an LEA or meeting an exception to the compliance requirement. The requirement to comply with any reasonable request is an ongoing requirement, meaning that applicants must continue to cooperate with the LEA from the time of their initial application through the time they apply for adjustment of status to lawful permanent resident. See new 8 CFR 214.11(h)(1) and (m)(2)(ii)–(iii); 8 CFR 245.23(a)(6)(i). Failure to comply with any reasonable request from the LEA can result in revocation of the T nonimmigrant status. See new 8 CFR 214.11(m)(2)(ii)–(iii). However, if the LEA chooses not to pursue an investigation or prosecution, that decision will not affect the applicant’s eligibility so long as the applicant complied with any reasonable LEA request. DHS notes that victims must also meet the other eligibility requirements, including the requirement that the victim establish that she or he would suffer extreme hardship involving unusual and severe harm upon removal from the United States. 8 CFR 214.11(i). The victim must include evidence of extreme hardship following the guidelines laid out in 8 CFR 214.11(i). One example of where this requirement may be met when the victimization occurred abroad is if the traffickers abroad are now threatening the victim or the victim’s family because the victim is no longer under the trafficker’s control or because the victim is cooperating with an LEA or judicial process in the United States. DHS will make ‘‘extreme hardship’’ determinations in accordance with the law and DHS policy, as discussed below in this preamble. 3. Compliance With Any Reasonable Request Third, a victim is required to comply with any reasonable request for assistance in a Federal, State, or local investigation or prosecution of acts of trafficking in persons, or the investigation of a crime where an act of trafficking in persons is at least one central reason for the commission of that crime. See INA section 101(a)(15)(T)(i)(III)(aa), 8 U.S.C. 1101(a)(15)(T)(i)(III)(aa); new 8 CFR 214.11(b)(3). A ‘‘reasonable request for assistance’’ is defined as ‘‘a reasonable request made by an LEA or prosecutor to a victim of a severe form of trafficking in persons to assist an LEA in the PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 investigation or prosecution of acts of trafficking in persons or the investigation of a crime where an act of trafficking in persons is at least one central reason for the commission of that crime.’’ 8 CFR 214.11(a). In this rule, DHS makes the following changes and clarifications: • Expanding the factors that DHS may consider in the totality of the circumstances test to determine the ‘‘reasonableness’’ of LEA requests. New 8 CFR 214.11(h)(2). • Clarifying that DHS will continue to use a ‘‘comparably situated crime victims’’ standard to determine reasonableness, rather than a ‘‘subjective trafficked persons’’ standard. • Clarifying that the proper standard to determine ‘‘reasonableness’’ is whether the LEA request was reasonable, not whether the victim’s refusal was unreasonable. New 8 CFR 214.11(m)(2)(ii). • Raising the age at which the applicant must comply with any reasonable request by an LEA for assistance in an investigation or prosecution of acts of trafficking in persons from 15 years to 18 years of age. New 8 CFR 214.11(h)(4)(ii). • According no special weight to an LEA endorsement and moving to an ‘‘any credible evidence’’ standard. New 8 CFR 214.11(h)(3). • In cases where the applicant is unable, due to physical or psychological trauma, to cooperate with any reasonable request by an LEA, exempting the applicant from the requirement to comply. New 8 CFR 214.11(h)(4)(i). DHS discusses each change in turn below. a. Totality of the Circumstances Test To Determine the ‘‘Reasonableness’’ of LEA Requests In the 2002 interim rule, DHS accounted for situations in which a request made to a victim was not reasonable. See 8 CFR 214.11(a). Under that rule, the reasonableness of a request depended on the totality of the circumstances, taking into account general law enforcement and prosecutorial practices, the nature of victimization, and the specific circumstances of the victim, including fear, severe traumatization (both mental and physical), and the age and maturity of young victims. Id. In the 2002 interim rule, DHS sought specific comments on this requirement. Of the total 191 public comments received, 37 comments related to some aspect of this issue. Fifteen commenters commended DHS for adopting a totality E:\FR\FM\19DER5.SGM 19DER5 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES5 of the circumstances test to determine the reasonableness of an LEA request and for balancing law enforcement needs and the protection of victims. Some commenters appreciated the comprehensiveness of the totality of the circumstances test. Some commenters also provided a broad, non-exhaustive list of factors to be considered when implementing the totality of the circumstances test, including fear of retribution against family members outside the United States for whom foreign law enforcement cannot or will not provide protection. Six commenters also thought the regulations were too vague regarding how long a victim must comply with any reasonable requests for assistance. The commenters urged DHS to take into account circumstances that may delay or limit an applicant’s compliance with LEA requests when determining whether an applicant meets the compliance requirement. These circumstances could include responses to trauma and psychological issues, delays necessary to ensure the safety of the applicant or the applicant’s family members, delays or difficulties accessing social services, and the time it takes an applicant to build trust with law enforcement. DHS appreciates the public’s input with respect to the ‘‘reasonable requests for assistance’’ requirement. DHS strives to implement the aims of the TVPA while striking the proper balance between the law enforcement need to investigate and prosecute and the need to ensure that victims are not overburdened. DHS includes in this rule almost all of the commenters’ suggested factors to consider when evaluating the reasonableness of an LEA request, including factors related to time. See new 8 CFR 214.11(h)(2). DHS will evaluate the totality of the circumstances using a broad range of factors, and is not limited by those listed in this rule. Id. b. ‘‘Comparably-Situated Crime Victims’’ Standard In the 2002 interim rule, DHS noted that it is generally reasonable for an LEA to ask a victim of a severe form of trafficking in persons similar things an LEA would ask other comparablysituated crime victims, thus articulating a ‘‘comparably-situated crime victims’’ standard. 67 FR 4784, at 4788. Some commenters suggested, however, that in the application of the test, DHS could go further by replacing the ‘‘comparablysituated crime victims’’ standard with a ‘‘subjective trafficked person’’ standard that would take into account the unique situation of the particular trafficking victim. DHS has determined, however, VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 that a ‘‘subjective trafficked persons’’ standard could actually be narrower than the existing ‘‘comparably-situated crime victims.’’ 67 FR 4784, at 4788. DHS also notes that many factors of the totality of the circumstances test are unique to trafficking victims. The definition of ‘‘severe forms of trafficking in persons’’ can be limiting in that elements of force, fraud, and coercion are required. By adopting a ‘‘subjective trafficked persons’’ standard, USCIS would be bound by the federal trafficking definition. The existing comparably-situated crime victim standard can go beyond the scope of the federal trafficking definition to victims of other crimes, such as domestic violence. Law enforcement practice regarding sensitivity to domestic violence victims is long standing and has evolved over the course of several decades. DHS did not limit who it envisioned as a comparably-situated crime victim, intending to keep the evaluation of reasonableness as broad as possible. After considering the comments, DHS has determined that it will retain the reasonableness test and use the comparably-situated crime victim standard in its application, as it properly focuses on the protection of victims and provides more flexibility than the alternative suggested by commenters. In addition, DHS notes that when comments on the 2002 interim rule were submitted, Congress had not yet added the trauma exemption from compliance with any reasonable requests. In part because of the trauma exemption that Congress enacted following the 2002 interim rule and that is discussed later in this Preamble, DHS sees no need to amend current practice. c. Proper Standard Is the Reasonableness of the LEA Request DHS received six comments asserting that USCIS inconsistently implements the statutory requirement that a victim must comply with ‘‘any reasonable request for assistance’’ by sometimes trying to determine whether the victim’s refusal to assist was reasonable, instead of whether the request itself was reasonable. The commenters pointed out that the 2002 interim rule discusses the victim’s refusal to assist an LEA at page 4788 under, ‘‘What is the Law Enforcement Agency Endorsement?’’ and at 8 CFR 214.11(s)(1)(iv), Grounds for notice of intent to revoke. Commenters also suggested the word ‘‘reasonable’’ should be added to Part D (Cooperation of Victim) checklist item of the Declaration of Law Enforcement Officer for Victim of Trafficking in PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 92275 Persons, Form I–914 Supplement B. The item would then read that the applicant ‘‘has complied with reasonable requests for assistance . . . .’’ DHS agrees that the statute focuses on whether an LEA request was reasonable and not whether a victim unreasonably refused to assist. (DHS notes, however, that whether a request is reasonable can depend on victim-specific factors, such as whether the victim and the victim’s family are sufficiently safe or emotionally able to assist law enforcement at any given time.) DHS is amending the revocation standards to reflect the statutory language. New 8 CFR 214.11(m)(2)(iii). DHS has also revised Declaration of Law Enforcement Officer for Victim of Trafficking in Persons, Form I–914 Supplement B to the Application for T Nonimmigrant Status, Form I–914, to add the term ‘‘reasonable’’ to refer to requests made to a victim. d. Minors Exempt From Compliance With Any Reasonable Request DHS received eight comments specific to minors and the requirement for compliance with any reasonable request. These commenters proposed that DHS consider the applicant’s age and any developmental delays for minors above the age of 15. Persons under the age of 15 were not required to comply with any reasonable requests for assistance under the 2002 interim rule. The commenters requested special consideration for those between the ages of 15 and 18. Since the 2002 interim rule, the statute has been amended to exempt from this requirement children under 18 years of age and those who cannot comply with a request for assistance due to physical or psychological trauma. See INA section 101(a)(15)(T)(i)(III)(bb) and (cc), 8 U.S.C. 1101(1)(15)(T)(i)(III)(bb) and (cc); new 8 CFR 214.11(b)(3)(i) and (ii). Therefore, there is no longer a population of 15 to 18 year olds to which this comment would apply. See new 8 CFR 214.11(b)(3)(i) and 214.11(h)(4)(ii). e. Evidence of Compliance With Any Reasonable Request Under the 2002 interim rule, evidence of compliance was weighed as primary evidence or secondary evidence, similar to the evidentiary requirement for victimization. See 8 CFR 214.11(h). An LEA endorsement was primary evidence of compliance with reasonable requests. Id. Secondary evidence was any credible evidence submitted to explain the nonexistence or unavailability of the primary evidence and to demonstrate E:\FR\FM\19DER5.SGM 19DER5 sradovich on DSK3GMQ082PROD with RULES5 92276 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations compliance with any reasonable request. Id. DHS received 10 comments relating to the creation of an LEA endorsement, an optional part of an application for T nonimmigrant status. Commenters believed that in practice the endorsement is mandatory since it is primary evidence, and that it creates an imbalance between the needs of law enforcement and the rights of victims. Commenters asserted that the use of an LEA endorsement is not specifically required by statute. Furthermore, commenters believed that Congress did not intend for the LEA endorsement to be required because an endorsement was required in the U nonimmigrant statute concerning victims of certain qualifying criminal activity under INA section 214(p)(1), which includes human trafficking, but not specifically required in the T nonimmigrant statute. Commenters also suggested allowing State or local LEAs to issue an endorsement in addition to Federal LEAs. DHS is amending the regulations with this rule to discontinue the ‘‘primary’’ and ‘‘secondary’’ evidentiary distinctions in favor of an ‘‘any credible evidence’’ standard. See new 8 CFR 214.11(d)(2)(ii) and (3). Under new 8 CFR 214.11(h)(3), USCIS will accept any credible evidence of compliance with reasonable requests, including, but not limited to, an LEA endorsement. See new 8 CFR 214.11(d)(3). DHS notes that under the ‘‘any credible evidence’’ standard, the absence of an LEA endorsement will not adversely affect an applicant who can meet the evidentiary burden with the submission of other evidence of sufficient reliability and relevance. Even though the statute creating T nonimmigrant status did not explicitly require an LEA endorsement, DHS considers such an endorsement a useful and convenient form of evidence, among other types of credible evidence. In TVPRA 2003, Congress added section 214(o)(6) of the INA, 8 U.S.C. 1184(o)(6), which instructs USCIS to consider statements from State and local LEAs that a victim has complied with any reasonable requests for assistance in investigations or prosecutions where trafficking appears to have been involved. See TVPRA 2003 section 4(b)(2)(B). TVPRA 2003 also added State and local LEAs to the compliance requirement at section 101(a)(15)(T)(i)(III)(aa) of the INA, 8 U.S.C. 1101(a)(15)(T)(i)(III)(aa). Id. TVPRA 2003 endorsed and codified the LEA endorsement process by directing USCIS to consider statements from State and local LEAs. See TVPRA 2003 VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 section 4(b)(2)(B), INA section 214(o)(6), 8 U.S.C. 1184(o)(6). In creating the T nonimmigrant status, Congress intended to provide law enforcement with a tool to combat and prosecute human trafficking and to protect victims of human trafficking. DHS intends to equally balance the goals of law enforcement and victim protection by moving to an ‘‘any credible evidence’’ standard. DHS has amended the evidentiary standard as described above. This change to an ‘‘any credible evidence’’ standard also clarifies some misconceptions of the LEA role in the T nonimmigrant process. Signing an endorsement does not grant T nonimmigrant status, nor does it lead to automatic approval. Only USCIS can grant T nonimmigrant status after reviewing evidence and completing security and background checks. An ‘‘any credible evidence’’ standard may assist LEAs in better understanding their role in the T nonimmigrant process. This new standard may also result in LEAs being more likely to sign endorsements, increasing the likelihood that T nonimmigrant status will be utilized as the law enforcement tool that it is intended to be. Even in the absence of an LEA endorsement, in order to determine whether a victim meets the ‘‘compliance with any reasonable request’’ requirement, DHS may contact the LEA that is involved in the case at its discretion to document the victim’s compliance (or inability to comply) with reasonable requests for assistance. Consistent with DHS’ adoption of an any credible evidence standard, this rule also expands the definition of ‘‘Law Enforcement Agency (LEA)’’ to allow for any Federal, State or local law enforcement agency, prosecutor, judge, labor agency, or other authority that has responsibility for the detection, investigation, and/or prosecution of severe forms of trafficking in persons to complete an LEA endorsement. New 8 CFR 214.11(d)(2); 8 CFR 214.11(h)(3). Federal LEAs include but are not limited to: U.S. Attorneys’ Offices, Civil Rights Division, Criminal Division, U.S. Marshals Service, Federal Bureau of Investigation (Department of Justice); U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP); Diplomatic Security Service (Department of State); and U.S. Department of Labor. State and local LEAs include but are not limited to: Police departments, sheriff’s offices, district attorney’s offices, human rights commissions, departments of labor, and child protective services. An agency that has the responsibility to detect severe forms of trafficking in persons may be PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 an LEA even if the agency does not investigate or prosecute acts of trafficking. Further, commenters suggested that the act of filing an application for T nonimmigrant status amounts to contacting law enforcement and DHS should require no additional action. At a minimum, commenters asked USCIS to ensure that Federal LEAs issue LEA endorsements without undue delay if a prosecution does not proceed as originally charged, a prosecution moves forward for a lesser offense, or a State or local prosecution proceeds in lieu of a Federal prosecution. Since the regulations were promulgated, INS was dissolved and its responsibilities transferred to several components of DHS. Unlike the Department of Justice (DOJ) or law enforcement components within DHS, such as ICE, USCIS has no authority to investigate or prosecute trafficking. Therefore, applying for T nonimmigrant status with USCIS is not the same as contacting an LEA to report a trafficking crime. DHS cannot assure applicants that LEAs will issue endorsements, but has clarified with this rule that a formal investigation or prosecution is not required in order for an LEA to complete an endorsement. See new 8 CFR 214.11(d)(3)(i). DHS has created awareness materials and training for LEAs that describe the LEA role in the process and emphasize that a formal investigation or prosecution is not required to complete an endorsement. DHS is removing language that described how to obtain an LEA endorsement if the victim has not had contact with an LEA. See former 8 CFR 214.11(f)(4). That provision directed applicants to contact the DOJ hotline to file a complaint and be referred to an LEA. This level of specificity is overlydetailed for regulations and it does not provide sufficient flexibility to adapt to changes in the future. Since the publication of the 2002 regulations, DHS and many other Federal agencies and nongovernmental partners have engaged in various public education campaigns and posted information on Web sites, which are better vehicles than regulations for conveying this type of guidance. Finally, the 2002 interim rule created a requirement that the LEA endorsement be signed by a supervising official responsible for the detection, investigation or prosecution of severe forms of trafficking in persons. See 8 CFR 214.11(f)(1). This interim final rule maintains that requirement at new 8 CFR 214.11(d)(3)(i). USCIS did not receive any comments on this requirement in connection with the E:\FR\FM\19DER5.SGM 19DER5 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES5 2002 interim rule. More recently, however, USCIS has received public feedback on a similar requirement in the U nonimmigrant status process. USCIS will consider any changes related to the U nonimmigrant status process in a separate rulemaking. f. Trauma Exception Legislation enacted since the publication of the 2002 interim rule exempts victims who cannot cooperate with an LEA request due to physical or psychological trauma from compliance with the any reasonable request requirement. See INA section 101(a)(15)(T)(i)(III)(bb), 8 U.S.C. 1101(a)(15)(T)(i)(III)(bb); new 8 CFR 214.11(b)(3)(ii). DHS adds this statutory change in this rule and provides guidance on how an applicant can demonstrate the requisite trauma. New 8 CFR 214.11(h)(4)(i). DHS welcomes comments on how it should evaluate whether an applicant cannot comply with a request for cooperation from an LEA due to trauma. DHS will require that an applicant submit an affirmative statement describing the trauma, and any other credible evidence. Other supporting evidence may include a signed attestation as to the victim’s physical or psychological indicators of trauma from a person qualified to make such determinations in the course of his or her job, such as a medical professional, social worker, or victim advocate, or any medical, psychological, or other records that are relevant to the trauma. See INA section 101(a)(15)(T)(i)(III)(bb), 8 U.S.C. 1101(a)(15)(T)(i)(III)(bb); new 8 CFR 214.11(h)(4)(i). In order to show that the person providing the signed attestation is qualified to make such a determination in the course of his or her job, the applicant could provide a description of the person’s qualifications or education or a description of the person’s contact and experience with the applicant. Although a victim’s affidavit alone may suffice to satisfy the victim’s evidentiary burden, USCIS encourages applicants to submit additional evidence that will assist them in establishing the trauma exception from the general requirement that they comply with any reasonable LEA request for assistance. In order to determine whether a victim meets the trauma exception, DHS may contact the LEA that is involved in the case at its discretion to document the victim’s inability to assist in the law enforcement process. See new 8 CFR 214.11(h)(4)(i). In these trauma exception cases, the applicant is not required to have had contact with an VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 LEA, including reporting the trafficking. In those cases with no LEA contact, DHS will not contact an LEA because there will not be an LEA involved with the applicant’s case. Congress instructed DHS to consult with DOJ as appropriate when adjudicating the trauma exception from compliance with reasonable LEA requests. See INA section 101(a)(15)(T)(i)(III)(bb), 8 U.S.C. 1101(a)(15)(T)(i)(III)(bb). USCIS already collaborates with DOJ on certain T nonimmigrant matters and it will follow a similar process for the trauma exception. USCIS may consult with DOJ regarding the trauma exception when the underlying criminal case is being handled by DOJ. 4. Extreme Hardship Involving Unusual and Severe Harm Upon Removal The fourth and final eligibility requirement for T nonimmigrant status is that the applicant would suffer extreme hardship involving unusual and severe harm upon removal from the United States. See INA section 101(a)(15)(T)(i)(IV), 8 U.S.C. 1101(a)(15)(T)(i)(IV); new 8 CFR 214.11(b)(4). When evaluating whether removal would result in such extreme hardship, USCIS considers a number of factors and uses an ‘‘any credible evidence’’ standard. See 8 CFR 214.11(i)(3); new 8 CFR 214.11(d)(5). In this rule, DHS clarifies two points regarding the extreme hardship requirement based on public comment: • Minors are not exempt from the extreme hardship requirement. • The applicant bears the burden of proof for the extreme hardship requirement. DHS discusses these in turn below. Nine commenters suggested a rule that minors would always suffer extreme hardship involving unusual and severe harm on removal. Congress did not exempt minors from the extreme hardship requirement. See INA section 101(a)(15)(T)(i)(IV), 8 U.S.C. 1101(a)(15)(T)(i)(IV). In contrast, Congress did exempt minors from compliance with reasonable LEA requests. See INA section 101(a)(15)(T)(i)(III)(cc), 8 U.S.C. 1101(a)(15)(T)(i)(III)(cc). As noted above, Federal law also defines ‘‘severe forms of trafficking in persons’’ differently with respect to victims under 18 years old than with respect to victims 18 years and older. See 22 U.S.C. 7102(9)(A). Consistent with the different treatment of minors with regard to certain eligibility criteria in the statute, DHS will not adopt a per se rule that minors would suffer extreme hardship. USCIS, however, considers an PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 92277 applicant’s age, maturity, and personal circumstances (among other factors) when evaluating the extreme hardship requirement. See new 8 CFR 214.11(i)(2). One commenter stated that it is unrealistic to place the burden of proof on the applicant to show extreme hardship. This comment appears to be based on a lack of general understanding of USCIS immigration benefit processing. The applicant bears the burden of proving he or she is eligible to receive any immigration benefits requested; the government is not required to prove an applicant’s ineligibility. See INA section 291, 8 U.S.C. 1361; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010); Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966); 8 CFR 103.2(b)(1). The applicant may document his or her extreme hardship through a personal statement or other evidence. New 8 CFR 214.11(i)(3). USCIS can consider relevant country condition reports and any other public or private sources of information, when appropriate. Id. By allowing such a broad ‘‘any credible evidence’’ standard, including the applicant’s own statement, USCIS is recognizing and taking into account difficulties applicants may encounter in obtaining certain documents. B. Application Requirements 1. Filing the Application An applicant must submit a complete Application for T Nonimmigrant Status, Form I–914, in accordance with the form instructions. See new 8 CFR 214.11(d)(1). DHS is making the following changes and clarifications in this rule: • Removing the filing deadline. • Amending the related forms to reflect public comments. • Continuing to require proof of identity and relationship for family members of minor applicants. New 8 CFR 214.11(k)(3). • Amending the law enforcement referral language to account for the creation of DHS. New 8 CFR 214.11(o). DHS discusses each of these in turn. a. Filing Deadline DHS required anyone victimized prior to October 28, 2000, to apply for T nonimmigrant status before January 31, 2003. 8 CFR 214.11(d)(4). DHS received seven comments against the adoption of this filing deadline. Commenters noted that Congress did not impose a deadline and further noted T nonimmigrant status is meant for a person who is or has been a victim of severe form of trafficking in persons. Commenters also E:\FR\FM\19DER5.SGM 19DER5 92278 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES5 thought the deadline would hinder victims from coming forward and receiving protection, as well as LEA efforts to combat trafficking. DHS acknowledges that Congress did not impose a filing deadline. At the time of the 2002 interim rule, DHS anticipated a large volume of applications for T nonimmigrant status. The deadline was intended to prevent application backlogs. T nonimmigrant application volume has not reached expected levels. To protect as many victims as possible, DHS is removing the deadline in this interim rule. As of January 18, 2017, USCIS will accept applications regardless of when the applicant was victimized. b. Form-Related Changes DHS received 11 specific comments about particular fields on the Application for T Nonimmigrant Status, Form I–914 and the Application for Family Member of T–1 Recipient, Form I–914 Supplement A. Commenters asked USCIS to change a question on victimization to allow for the past tense, remove a question on public benefits, and add a safe address for the eligible family members of an approved T–1 nonimmigrant. USCIS has updated the Application for T Nonimmigrant Status, Form I–914, and Application for Family Member of T–1 Recipient, Form I–914 Supplement A, several times since the publication of the 2002 interim rule. The current version of the form allows victimization in the past tense. Forms I–914 and Supplement A for T nonimmigrant derivatives contain a safe address. In addition, the application no longer contains a question about public benefits. In the Paperwork Reduction Act (PRA) section of this rule, DHS requests public comments on the revised Application for T Nonimmigrant Status, Form I–914; Application for Family Member of T–1 Recipient, Form I–914 Supplement A; and Declaration of Law Enforcement Office for Victim of Trafficking in Persons, Form I–914 Supplement B. 44 U.S.C. 3507. DHS is renaming the Application for Family Member of T–1 Recipient, Form I–914 Supplement A. DHS is removing the phrase ‘‘immediate family member’’ because, as explained in this preamble, the derivative categories have been statutorily expanded to include family members who are not traditionally thought of as ‘‘immediate family members’’ Four comments suggested that USCIS should return incomplete forms to the applicant with a rejection notice and allow an applicant to re-file using the process USCIS established for VAWA VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 self-petitioners. USCIS is not aware of the process for VAWA self-petitioners to which the commenter is referring. Nonetheless, 8 CFR 103.2(a) requires benefit requests to be executed and filed in accordance with the form instructions and provides that a benefit request that is not executed may be rejected. Accordingly, USCIS properly returns substantially incomplete forms (including U nonimmigrant petitions and VAWA self-petitions) to the petitioner, who is instructed in the rejection notice that they may correct the deficiencies that are noted and refile their request. c. Proof Required for Family Members of a Minor Applicant One commenter also asserted that the standards for proving identity and eligibility for eligible family members of a minor principal are too burdensome and recommended approving the eligibility of family members of a minor principal regardless of the incomplete application. DHS declines to accept the commenter’s proposal because all applicants for immigration benefits generally must submit all required initial evidence, and supporting documentation, with an application completed according to form instructions. 8 CFR 103.2(a). There are already allowances in regulations if original documentation to prove age and identity are not available. 8 CFR 103.2(b)(2) (permitting the submission of secondary evidence to overcome the unavailability of primary evidence, and affidavits to overcome the unavailability of both primary and secondary evidence). In addition, many eligible family members are outside the United States and need to be processed by the Department of State (DOS) at a United States embassy or consulate in order to receive a T visa to apply for admission to the United States. These eligible family members must prove identity, age, and relationship during consular processing according to DOS standards. DHS does not believe it would be beneficial to applicants for DHS to relax the standard USCIS requires to prove identity because that may result in a situation where USCIS approves a Form I–914, but DOS will not grant a T visa for entry to the United States. d. Referral to Law Enforcement and Department of Health and Human Services One commenter also recommended that a filing from a victim under 18 years of age should trigger a proactive investigation by law enforcement and experts in child protective services. PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 USCIS cannot initiate this type of investigation because USCIS is not a law enforcement agency, but the 2002 interim rule contained provisions for referring cases to investigators. See 8 CFR 214.11(v). DHS is amending this language to account for the creation of DHS and will instruct USCIS officers who come into contact with a possible victim who is not already working with an LEA to refer the case to ICE officials responsible for victim protection, trafficking investigations and prevention, and deterrence, as appropriate. See new 8 CFR 214.11(o). Furthermore, child protective services are generally under the jurisdiction of States, and USCIS cannot require States to investigate claims of crimes or abuse against children. TVPRA 2008 vested responsibility for the care and custody of unaccompanied alien children with the U.S. Department of Health and Human Services (HHS).9 See TVPRA 2008 section 235(b)(1), 8 U.S.C. 1232(b)(1). Federal agencies must notify HHS upon apprehension or discovery of an unaccompanied alien child or any claim or suspicion that an individual in custody is under 18 years of age. See TVPRA 2008 section 235(b)(2), 8 U.S.C. 1232(b)(2). TVPRA 2008 also provided that federal agencies would notify HHS to facilitate the provision of public benefits to trafficking victims. Minors are eligible to receive federally funded benefits and services to the same extent as a refugee as soon as they are identified by HHS as a possible victim of trafficking, unlike adults who are eligible for public benefits only upon a grant of continued presence by DHS under 28 CFR 1100.35, a bona fide determination, or approval of T nonimmigrant status. Federal officials also must notify HHS upon discovering that a person under the age of 18 may be a victim of a severe form of trafficking in persons to facilitate provision of interim assistance to the minor victim. See TVPRA 2008 section 212(a)(2), 22 U.S.C. 7105(b)(1)(H). Upon receiving a T nonimmigrant status application from a minor, USCIS will notify HHS in order for the minor to be advised of public benefits that may be available as a minor victim of trafficking. See new 8 CFR 214.11(d)(1)(iii). 9 An unaccompanied alien child is defined as one who has no lawful immigration status in the United States, has not attained 18 years of age, and has no parent or legal guardian in the United States or no parent or legal guardian in the United States available to provide care and physical custody. 6 U.S.C. 279(g)(2). E:\FR\FM\19DER5.SGM 19DER5 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations 2. Initial Evidence sradovich on DSK3GMQ082PROD with RULES5 All applicants for immigration benefits generally must submit all required initial evidence, and supporting documentation, with an application completed according to form instructions. 8 CFR 103.2(a). DHS is amending what constitutes acceptable initial evidence that must accompany the application for T nonimmigrant status. See new 8 CFR 214.11(d)(2). DHS will allow the following initial evidence: • A signed statement in the applicant’s own words describing the victimization and cooperation with any LEA reasonable request for assistance or applicable exemptions from cooperation with such an LEA request, and any other eligibility requirements; • Evidence that the applicant is or has been a victim of a severe form of trafficking in persons; • Evidence that the applicant meets the physical presence requirement; • Evidence of any one of the following: D The applicant has complied with any reasonable request for assistance in a Federal, State, or local investigation or prosecution of crime where acts of trafficking are at least one central reason for the commission of that crime; D The applicant is under 18 years of age; or Æ The applicant is unable to cooperate with a reasonable request due to physical or psychological trauma; • Evidence that the applicant would suffer extreme hardship involving unusual and severe harm if removed from the United States; and • If the applicant is inadmissible, an Application for Advance Permission to Enter as Nonimmigrant, Form I–192, and supporting evidence to explain the inadmissibility. As discussed above, DHS is removing the provisions requiring USCIS to weigh evidence as primary or secondary, and will accept any credible evidence to demonstrate each eligibility requirement for T nonimmigrant status. See new 8 CFR 214.11(d)(2)(ii). USCIS will determine the credibility and weight of evidence at its sole discretion. See new 8 CFR 214.11(d)(5). As is the case in all other immigration benefits, the applicant bears the burden of establishing eligibility. Id. 3. Bona Fide Determinations Current regulations provide for USCIS to conduct an initial review of each T nonimmigrant status application package to determine if the application is a bona fide application. An application will be determined to be VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 bona fide if the application is complete and ready for adjudication. Among other requirements, the application must include biometrics, background checks, and prima facie evidence for each eligibility requirement. See 8 CFR 214.11(k). In conjunction with this preadjudication bona fide determination review, USCIS may grant the applicant deferred action when the application for T nonimmigrant status is bona fide, which allows the applicant to request employment authorization. See Memorandum from Stuart Anderson, Executive Associate Commissioner, Office of Policy and Planning, INS, Deferred Action for Aliens with Bona Fide Applications for T Nonimmigrant Status (May 8, 2002).10 One commenter recommended that USCIS make a bona fide determination and grant deferred action within 90 days of the receipt of the application. Since 2002, USCIS has received fewer applications for T nonimmigrant status than were expected. USCIS generally adjudicates the merits of T nonimmigrant applications as quickly as it can make a bona fide determination. Nevertheless, in the event of processing backlogs, DHS recognizes that a bona fide determination may offer a victim of trafficking some protection for immigration status purposes, employment authorization, and the availability of public benefits through HHS. In reference to a 90-day deadline, USCIS cannot guarantee a bona fide determination within 90 days in every case because the bona fide determination is dependent on the unique circumstances of each case, and the completion of biometric and background checks. Typically, these checks will be completed within 90 days, but occasionally the checks will take longer than 90 days. The completion of biometric and background checks depends on several factors, such as the schedule of the applicant, the workload of the Federal Bureau of Investigation (FBI) and other factors over which USCIS does not have control. DHS will retain the current regulatory process for bona fide determinations and make no additional changes at this time. See new 8 CFR 214.11(e). This commenter also asked USCIS to notify HHS of a bona fide determination so that HHS can facilitate federal public benefits available to trafficking victims, as well as amend the bona fide determination notice to include 10 Available for review in the rulemaking docket for this rule (DHS Docket No. USCIS–2011–0010) at https://www.regulations.gov. PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 92279 information about the federal benefits. USCIS currently notifies HHS upon approval of an application or a bona fide determination. As discussed elsewhere in this preamble, DHS will also notify HHS in accordance with TVPRA 2008 section 212(a)(2), 22 U.S.C. 7105(b)(1)(G). See new 8 CFR 214.11(d)(1)(iii). 4. Derivative Family Members An applicant may be permitted to apply for certain family members to receive derivative T nonimmigrant status. In this rule, DHS is making the following changes and clarifications: • Defining terms used to refer to victims and their family members to provide clarity. New 8 CFR 214.11(a). • Adding new derivative categories since publication of the 2002 interim rule. New 8 CFR 214.11(k)(1). DHS will discuss each in turn. a. Definitions DHS is defining ‘‘principal T nonimmigrant,’’ ‘‘eligible family member’’ and ‘‘derivative T nonimmigrant’’ to clarify these terms used throughout the regulations. New 8 CFR 214.11(a). Principal T nonimmigrant means the victim of trafficking who has been granted T–1 nonimmigrant status. Id. DHS uses the term ‘‘victim’’ to refer to aliens who were subject to a severe form of trafficking in persons, and who may be eligible to apply for T–1 nonimmigrant status. Id. Eligible family member means someone who has the relationship to a principal applicant required for derivative T nonimmigrant status. Id. Derivative T nonimmigrant refers to an eligible family member in the United States who has been granted T–2, T–3, T–4, T–5, or T–6 nonimmigrant derivative status or an eligible family member who has been admitted to the United States as a T–2, T–3, T–4, T–5, or T–6 nonimmigrant. Id. b. Eligibility of Certain Family Members The law governing T nonimmigrant status was changed in 2003 to allow a principal alien under 21 years of age to apply for admission of his or her parents and unmarried siblings under 18 years of age. See TVPRA 2003 section 4(b)(1)(B) and (b)(2), INA section 101(a)(15)(T)(ii)(I), 8 U.S.C. 1101(a)(15)(T)(ii)(I). In 2008, the law was amended to allow any principal, regardless of age, to apply for derivative T nonimmigrant status for parents or unmarried siblings under 18 years of age if the family member faces a present danger of retaliation as a result of the principal’s escape from the severe form of trafficking in persons or cooperation E:\FR\FM\19DER5.SGM 19DER5 92280 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES5 with law enforcement. See TVPRA 2008 section 201(a)(2)(D), INA section 101(a)(15)(T)(ii)(III), 8 U.S.C. 1101(a)(15)(T)(ii)(III). In 2013, the derivative categories were further expanded to allow any principal, regardless of age, to apply for children (adult or minor) of the principal’s derivative family members if the derivative’s child (adult or minor) faces a present danger of retaliation as a result of the principal’s escape from the severe form of trafficking or cooperation with law enforcement. See VAWA 2013 section 1221, INA section 101(a)(15)(T)(ii)(III), 8 U.S.C. 1101(a)(15)(T)(ii)(III). DHS is amending the T nonimmigrant status regulations accordingly in this rule. New 8 CFR 214.11(k)(1)(ii)–(iii). There are two general categories of family members eligible for T nonimmigrant status: those whose eligibility is based on the age of the principal and those whose eligibility is based on a showing of a present danger of retaliation. See INA section 101(a)(15)(T)(ii), 8 U.S.C. 1101(a)(15)(T)(ii). Under INA section 101(a)(15)(T)(ii)(I), 8 U.S.C. 1101(a)(15)(T)(ii)(I), eligible family members of a principal alien under 21 years of age are the principal’s: • Spouse, • Child(ren),11 • Unmarried sibling(s) under 18 years of age; and/or • Parent(s). Under INA section 101(a)(15)(T)(ii)(II), 8 U.S.C. 1101(a)(15)(T)(ii)(II), eligible family members of a principal alien over 21 years of age are the principal’s: • Spouse, and/or • Child(ren). Under INA section 101(a)(15)(T)(ii)(III), 8 U.S.C. 1101(a)(15)(T)(ii)(III), eligible family members whose eligibility is based on a showing of a present danger of retaliation as a result of the principal’s escape from the severe form of trafficking or cooperation with law enforcement (regardless of the age of the principal or, except where noted below, the age of the derivative) are the principal’s: • Parent(s) (added by TVPRA 2008), • Unmarried sibling(s) under 18 years of age (added by TVPRA 2008),12 11 See definition of child at INA section 101(b)(1), 8 U.S.C. 1101(b)(1), which includes stepchildren. 12 Practically, the ‘‘parent(s)’’ and ‘‘unmarried sibling(s) under 18 years of age’’ derivative categories added by TVPRA 2008 benefit principal aliens who are over 21 years of age. This is because regardless of whether the family member faces a present danger of retaliation as a result of the principal alien’s escape from the severe form of VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 • Child(ren) or stepchild(ren),13 namely the adult or minor child of the principal alien’s spouse (added by VAWA 2013), • Grandchild(ren), namely the adult or minor child of the principal alien’s child (added by VAWA 2013), • Niece or nephew, namely the adult or minor child of the principal alien’s sibling (added by VAWA 2013), and/or • Sibling(s) (regardless of age or marital status), namely the adult or minor child of the principal alien’s parent (added by VAWA 2013).14 The VAWA 2013 derivative expansion for children (adult or minor) of the principal’s derivative family members if the derivative’s child (adult or minor) faces a present danger of retaliation does not extend to the family members of the adult or minor child. For example, the spouse of an adult niece would not be eligible for derivative T nonimmigrant status. The principal applicant may file an Application for Family Member of T–1 Recipient, Form I–914 Supplement A on behalf of these eligible family members, in accordance with form instructions. When relevant, and as described below, evidence that demonstrates a present danger of retaliation to the eligible family member must be included. New 8 CFR 214.1(a)(1)(viii) classifies the principal alien and eligible derivative family members as: trafficking or cooperation with law enforcement, the parent(s) and unmarried sibling(s) under 18 years of age of a principal who is under 21 years of age qualify for derivative T nonimmigrant status under INA section 101(a)(15)(T)(ii)(II). 13 Stepchildren are eligible under the definition of child at INA section 101(b)(1). Delineating stepchildren in this list is not intended to mean stepchildren are not already eligible. DHS includes this because the new T–6 category is complex and this list is intended to aid the reader. 14 Section 1221 of VAWA 2013 provided, ‘‘Section 101(a)(15)(T)(ii)(III) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(T)(ii)(III)[)] is amended by inserting ‘, or any adult or minor children of a derivative beneficiary of the alien, as’ after ‘age’.’’ 127 Stat. 144. The resulting statutory text in INA section 101(a)(15)(T)(ii)(III) is awkwardly worded: ‘‘any parent or unmarried sibling under 18 years of age, or any adult or minor children of a derivative beneficiary of the alien, as of an alien described in subclause (I) or (II) who the Secretary . . . determines faces a present danger of retaliation as a result of the alien’s escape from the severe form of trafficking or with law enforcement’’ (emphasis added). DHS believes that this provision is most reasonably construed as encompassing parents of principal T–1 nonimmigrants (regardless of the T– 1’s age), unmarried siblings of T–1 nonimmigrants (regardless of the T–1’s age), and adult and minor children of derivative T nonimmigrants described in INA section 101(a)(15)(T)(ii)(I) or (II). A contrary reading would result in the inclusion of at-risk parents and unmarried siblings under 18 of derivative T nonimmigrants but the exclusion of atrisk parents and unmarried siblings under 18 of adult principal T–1 nonimmigrants. DHS does not believe that Congress intended such a counterintuitive outcome. PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 • T–1 (principal alien); • T–2 (spouse); • T–3 (child); • T–4 (parent); • T–5 (unmarried sibling under 18 years of age); and/or • T–6 (adult or minor child of a principal’s derivative). VAWA 2013 did not amend INA section 245(l), 8 U.S.C. 1255(l) to explicitly provide for adjustment of status for individuals who were granted derivative T nonimmigrant status as the children (adult or minor) of the principal’s derivative family members who face a present danger of retaliation as a result of the principal’s escape from the severe form of trafficking or cooperation with law enforcement.15 However, USCIS may adjust the status of the principal and any person admitted under INA section 101(a)(15)(T)(ii), 8 U.S.C. 1101(a)(15)(T)(ii), as the spouse, parent, sibling or child. See INA section 245(l)(1), 8 U.S.C. 1255(l)(1). Even though section 245(l)(1) of the INA specifically names only the ‘‘spouse, parent, sibling or child’’ of the T–1 nonimmigrant, the statute is reasonably construed as allowing for the adjustment of status of any eligible derivative given its general reference to ‘‘any person admitted under section 101(a)(15)(T)(ii),’’ which as amended by VAWA 2013 includes the new derivative classes. The plain text, therefore, could reasonably be construed to encompass the new derivative class of children of derivative T nonimmigrants. To conclude otherwise would be to impute to Congress, by virtue of this apparently inadvertent omission, an improbable intent to preclude the new class of derivatives from adjusting status, thwarting the very protection, family unity, and victim stabilization aims animating the expansion of derivative eligibility in the 2008 TVPRA and 2013 VAWA reauthorizations. See, e.g., United States v. Casasola, 670 F.3d 1023, 1029 (9th Cir. 2012) (‘‘[W]e do not impute to Congress an intent to create a law that produces an unreasonable result.’’). The practical effect of precluding adjustment of status would be to require these children of derivative T nonimmigrants to return, upon the expiration of their T nonimmigrant status, to the danger of retaliation that DHS and the LEA believed warranted their admission to the United States. 15 In section 809 of VAWA 2013, however, Congress did amend section 705(c) of the CNRA to clarify that physical presence in the CNMI on, before or after November 28, 2009 will be considered physical presence in the United States for purposes of INA section 245(l). E:\FR\FM\19DER5.SGM 19DER5 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations Nothing in the greater statutory scheme or the legislative history of either law suggests that such a result was congressionally designed or that the failure to provide a conforming amendment to section 245(l)(1) was intentional or due to anything other than oversight or inadvertence.16 Thus, individuals who were granted derivative T nonimmigrant status as the children (adult or minor) of the principal’s derivative family members who face a present danger of retaliation as a result of the principal’s escape from the severe form of trafficking or cooperation with law enforcement, may apply for adjustment of status under INA section 245(l) provided they are otherwise eligible. See new 8 CFR 245.23(b)(2). 5. Age-Out Protection of Eligible Family Members In some USCIS benefits, a principal alien is said to ‘‘age-out’’ if the alien was a certain age, generally under 21 years of age, at the time of filing, but then turns a certain age before USCIS adjudicates the application or petition. This type of age-out does not occur for principal aliens applying for T nonimmigrant status because they are protected by statute. See INA section 101(a)(15)(T)(ii)(I), 8 U.S.C. 1101(a)(15)(T)(ii)(I). However, as described in the following, DHS is addressing other types of age-out situations related to the ability of eligible family members to seek T nonimmigrant status. In this rule, DHS makes the following changes and clarifications: sradovich on DSK3GMQ082PROD with RULES5 16 This conclusion is bolstered by the fact that Congress similarly did not update the identical reference to ‘‘spouses, sons, daughters, siblings, or parents of such aliens [(T–1 nonimmigrants)]’’ in the provision establishing that the annual numerical limitation on grants of T nonimmigrant visas or status does not apply to derivative beneficiaries. INA section 214(o)(3), 8 U.S.C. 1184(o)(3); cf., e.g., King v. Burwell, 135 S. Ct. 2480, 2489, 2495 (2015) (observing that court’s ‘‘duty is to construe statutes, not isolated provisions,’’ that the meaning of a phrase ‘‘may seem plain when viewed in isolation, [but] turns out to be untenable in light of the statute as a whole’’ and that ‘‘the context and structure of the [act may] compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase’’) (quotation marks and citation omitted); Validus Reinsurance, Ltd. v. United States, 786 F.3d 1039, 1045–46 (D.C. Cir. 2015) (noting that courts ‘‘must . . . avoid statutory interpretations that bring about an anomalous result when other interpretations are available’’) (quotation marks omitted); Kolon Indus. Inc. v. E.I. DuPont de Nemours & Co., 748 F.3d 160, 169 (4th Cir. 2014) (‘‘Even the plain meaning of a statute is not conclusive ‘in the rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.’’’) (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242 (1989) (alteration in original)). VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 • A child principal can apply for all eligible family members, including parents and unmarried siblings under 18 years of age, so long as the child was under 21 years of age when he or she filed for T–1 nonimmigrant status. New 8 CFR 214.11(k)(5)(ii). • An unmarried sibling of a child principal need only be under 18 years of age at the time the principal files for T–1 nonimmigrant status. New 8 CFR 214.11(k)(5)(ii). • A child derivative need only be under 21 years of age at the time the principal parent filed for T–1 nonimmigrant status. New 8 CFR 214.11(k)(5)(iii). • Clarifying the distinction between age-out protections and marital status of a child or a sibling. New 8 CFR 214.11(k)(5)(v). a. Age-Out Protection for Child Principal To Apply for Eligible Family Members Seven commenters noted that a principal applicant under 21 years of age could turn 21 years of age before adjudication of the T nonimmigrant application, or age-out, and not be able to apply for a parent as a T–4 derivative. These commenters urged DHS to adopt the standard that if a principal applicant is under 21 years of age at the time of filing an application for T–1 nonimmigrant status, the ability to include a parent as a T–4 derivative is preserved. One commenter wrote that DHS should lock in the child’s age for purposes of eligibility as of the date the child comes to the attention of law enforcement. TVPRA 2003 fixed this potential ageout problem. See TVPRA 2003 section 4(b)(2)(B). A principal who files an application for T nonimmigrant status while under 21 years of age will continue to be treated as an alien described in INA section 101(a)(15)(T)(ii)(I), 8 U.S.C. 1101(a)(15)(T)(ii)(I) (a principal alien under 21 years of age), even if the alien attains 21 years of age while the T–1 application is pending. See INA section 214(o)(5), 8 U.S.C. 1184(o)(5). This means that as long as a principal applicant was under 21 years of age at the time of filing for T–1 status, he or she can still file an Application for Family Member of T–1 Recipient, Form I–914 Supplement A, to include T–4 parents or T–5 unmarried siblings under 18 years of age, even if the principal applicant turns 21 years of age before the principal alien’s T–1 application is adjudicated. See new 8 CFR 214.11(k)(5)(ii). PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 92281 b. Age-Out Protection for Unmarried Sibling Derivative of Child Principal Similarly, TVPRA 2003 provides that an unmarried sibling of a principal T– 1 applicant under 21 years of age need only be under the age of 18 at the time the principal T–1 applicant files the Application for T Nonimmigrant Status, Form I–914 for T–1 nonimmigrant status. See TVPRA 2003 section 4(b)(1)(B), INA section 101(a)(15)(T)(ii)(I), 8 U.S.C. 1101(a)(15)(T)(ii)(I); new 8 CFR 214.11(k)(5)(ii). It does not matter if the unmarried sibling turns 18 years of age before the principal applicant files an Application for Family Member of T–1 Recipient, Form I–914 Supplement A. c. Age-Out Protection for Child Derivative In addition, INA section 214(o)(4), 8 U.S.C. 1184(o)(4) was revised to provide that as long as a child T–3 derivative was under 21 years of age on the date the principal T–1 parent applied for T– 1 nonimmigrant status, he or she will continue to be classified as a child and allowed entry as a derivative child. See TVPRA 2003 section 4(b)(2)(B). This means that age at the time of classification, entry into the United States, or the date the child came to the attention of law enforcement, does not matter. Therefore, DHS has provided in this rule that for a child to be T–3 derivative, he or she must be under the age of 21 when the parent T–1 filed the Application for T Nonimmigrant Status, Form I–914 for T–1 nonimmigrant status. See new 8 CFR 214.11(k)(5)(iii). d. Marriage of Eligible Family Members In order to be eligible for T–3 or T– 5 status, this interim rule requires a child or a sibling under the age of 18 to be unmarried: • At the time the Application for T Nonimmigrant Status, Form I–914 for the principal is filed and adjudicated; • At the time the Application for Family Member of T–1 Recipient, Form I–914 Supplement A for the eligible family member is filed and adjudicated; and • At the time of admission to the United States (if an eligible family member is outside the United States). See new 8 CFR 214.11(k)(5)(v). The law uses the term ‘‘children’’ in the derivative categories for family members. See INA section 101(a)(15)(T)(ii), 8 U.S.C. 1101(a)(15)(T)(ii). The term ‘‘child’’ is defined as a person who is under 21 years of age and unmarried. See INA section 101(b)(1), 8 U.S.C. 1101(b)(1). The derivative category for siblings E:\FR\FM\19DER5.SGM 19DER5 92282 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES5 clarifies that the sibling must be unmarried and under the age of 18 years. See INA section 101(a)(15)(T)(ii), 8 U.S.C. 1101(a)(15)(T)(ii). The age-out protections described above are linked specifically to age, but are not linked to marital status. For example, INA section 214(o)(4), 8 U.S.C. 1184(o)(4), specifies that an ‘‘unmarried alien,’’ who is the eligible family member of a parent and was under 21 years of age when the parent applied for T–1 status, can continue to be classified as a child if he or she turns 21 before adjudication. DHS believes that in giving a specific time frame related to age only and by using the term ‘‘unmarried alien,’’ Congress did not intend a similar time-of-filing standard with respect to marital status. Similarly, Congress used the phrase ‘‘children, unmarried siblings under 18 years of age on the date on which such alien applied for status’’ in listing eligible family members for a principal who is under 21 years of age. See INA section 101(a)(15)(T)(ii)(I), 8 U.S.C. 1101(a)(15)(T)(ii)(I). Congress provided a specific time frame related to when siblings need to be under the age of 18, but does not give a time frame for marriage of either children or siblings. DHS believes that Congress intended that derivative status for T–3 children and T–5 unmarried siblings under the age of 18 should be limited to unmarried children and unmarried siblings through time of adjudication of both the principal’s and derivative’s T nonimmigrant application, as well as the admission into the United States of the family member. See new 8 CFR 214.11(k)(5)(v); cf., e.g., Akhtar v. Gonzales, 406 F.3d 399, 407–08 (6th Cir. 2005) (concluding that Congress’ provision of special age-out protections for derivative asylees but not similar protections based on marital status is reasonable and ‘‘easily withstand[s] constitutional scrutiny’’). e. Evidence for Eligible Family Members The principal applicant must submit an Application for Family Member of T– 1 Recipient, Form I–914 Supplement A, for each eligible family member with all required initial evidence and supporting documentation according to form instructions. See new 8 CFR 214.11(k)(2) and (3). DHS will require the following initial and supporting evidence: • Evidence demonstrating the relationship of the eligible family member to the principal applicant; • If seeking T–4, T–5, or T–6 status based on present danger of retaliation to the eligible family member, evidence of this danger; and VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 • If the eligible family member is inadmissible, a copy of the eligible family member’s Application for Advance Permission to Enter as Nonimmigrant, Form I–192 and attachments. As discussed above, DHS has removed the provisions weighing evidence as primary or secondary and will accept any credible evidence to demonstrate each eligibility requirement for derivative T nonimmigrant status. As is the case in all other immigration benefits, the applicant bears the burden of establishing eligibility. See 8 CFR 103.2(b). USCIS will consider any credible evidence relevant to the application for derivative T nonimmigrant status. See new 8 CFR 214.11(k)(7) and (d)(2)(ii). USCIS will exercise its sole discretion to determine what evidence is credible and the weight of such evidence. Id. DHS is removing regulatory language that required demonstration of extreme hardship to an eligible family member if the eligible family member was not allowed to accompany or follow to join the T–1 principal applicant. See 8 CFR 214.11(o)(1)(ii) and (5). This was a statutory requirement that was removed by VAWA 2005. See VAWA 2005 section 801(a)(2). The provisions under new 8 CFR 214.11(k)(6) describe how an applicant can demonstrate a present danger of retaliation to an eligible parent or unmarried sibling under the age of 18, or to a child (adult or minor) of a derivative applying for derivative T nonimmigrant status. USCIS will consider any credible evidence of a present danger of retaliation to the eligible family member. Present danger will be evaluated on a case-by-case basis. An applicant may submit a statement describing the danger the family member faces and how the danger is linked to the victim’s escape from trafficking or cooperation with law enforcement. An applicant’s statement alone, however, may not be sufficient. Other examples of evidence include, but are not limited to: a previous grant of advance parole to a family member; a signed statement from an LEA describing the danger of retaliation; trial transcripts, court documents, police reports, news articles, copies of reimbursement forms for travel to and from court; documentation from their country of origin or place of residence (e.g. foreign government agencies, local law enforcement, social services), and affidavits from other witnesses. Regardless of whether the applicant submits a statement from an LEA, USCIS reserves the right to contact the LEA most likely to be involved in the PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 criminal case, if appropriate. Applicants who believe such contact could further endanger them or their family member should indicate that in a cover letter in the application for the family member’s T derivative status or otherwise contact USCIS. C. Adjudication and Post-Adjudication 1. Prohibitions on Use of Information In this rule, DHS makes the following changes and clarifications relating to the disclosure and use of an applicant’s information provided to USCIS: • Updating the regulations to account for statutory confidentiality provisions applicable to T nonimmigrants. See new 8 CFR 214.11(p) • Confirming the legal requirement to turn over information to prosecutors. Id. • Confirming the warning on the T nonimmigrant application that information an applicant provides could be used to remove the applicant. DHS discusses each in turn. a. Applicability of Confidentiality Provisions The confidentiality provisions of section 384 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), codified at 8 U.S.C. 1367, apply to applicants for T nonimmigrant status. See IIRIRA section 384, 8 U.S.C. 1367. DHS issued the 2002 interim rule before the confidentiality provisions were applicable to those seeking T nonimmigrant status. Congress extended the confidentiality provisions to T nonimmigrant applicants in VAWA 2005. See VAWA 2005 section 817. In the 2002 interim rule, DHS did include some information about disclosure of an applicant’s information. For example, DHS allowed for disclosure of information to LEAs with the authority to detect, investigate, or prosecute severe forms of trafficking in persons. See 8 CFR 214.11(e). In this rule, DHS is incorporating the confidentiality provisions provided at 8 U.S.C. 1367, as amended, and including implementing provisions similar to those provided in the DHS U nonimmigrant status regulations. See new 8 CFR 214.11(p). DHS, however, does not see a need to include the full list of protections and exceptions, as it would essentially reiterate the language of 8 U.S.C. 1367(a)(2) and (b). By citing to the statutory confidentiality provisions, DHS is protecting applicants while also ensuring that the regulations remain up to date. DHS has issued departmentwide guidance on how these confidentiality provisions are interpreted and how they will be E:\FR\FM\19DER5.SGM 19DER5 sradovich on DSK3GMQ082PROD with RULES5 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations implemented. See, e.g., Department of Homeland Security Directive 002–02 and Instruction 002–02–001, Implementation of Section 1367 Information Provisions. DHS components plan to issue further guidance specific to component operations. T nonimmigrant applicants are protected under 8 U.S.C. 1367 in two ways. First, adverse determinations of admissibility or deportability against an applicant for T nonimmigrant status, with a limited exception for individuals convicted of certain crimes, cannot be made based on information furnished solely by the perpetrator of the acts of trafficking in persons. See IIRIRA section 384(a)(1)(F), 8 U.S.C. 1367(a)(1)(F). Second, the statute prohibits the use or disclosure to anyone of any information relating to the beneficiary of a pending or approved application for T nonimmigrant status except in certain limited circumstances. See IIRIRA section 384(a)(2), (b), 8 U.S.C. 1367(a)(2), (b). Section 1367(a)(2) allows the release of information to a sworn officer or employee of DHS, DOJ, DOS, or a bureau or agency of either of those Departments for legitimate Department, bureau, or agency purposes. Id. Section 1367(b) also enumerates specific exceptions to confidentiality. The statute permits, for example, disclosure of protected information, in certain limited circumstances, to law enforcement and national security officials and nongovernmental victim services providers. This rule, at new 8 CFR 214.11(p), also essentially reflects the same restrictions on use and disclosure of information relating to applicants for and beneficiaries of T nonimmigrant status that are described in DHS’ interim U nonimmigrant status regulations at 8 CFR 214.14(e). See New Classification for Victims of Criminal Activity; Eligibility for ‘U’ Nonimmigrant Status, 72 FR 53014, 53039 (Sept. 17, 2007). These restrictions are based on the statutory directive that DHS not ‘‘permit use by or disclosure to anyone’’ (other than a sworn officer or employee of DHS, DOJ, or DOS) of ‘‘any information which relates to’’ an applicant for or beneficiary of T or U nonimmigrant status or VAWA immigration relief, with limited exceptions (e.g., law enforcement or national security purposes). See 8 U.S.C. 1367(a)(2), (b). The intent of the restrictions in 8 U.S.C. 1367(a) on the use and disclosure of protected information was to ‘‘ensure that abusers and perpetrators of crime cannot use the immigration system against their victims,’’ either to silence VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 them or to commit further abuse. 151 Cong. Rec. E2605, E2607 (statement of Rep. John Conyers in support of VAWA 2005 amendments to 8 U.S.C. 1367). b. Disclosure Required in Relation to Criminal Prosecution In the 2002 interim rule, DHS allowed for disclosure of information to DOJ officials responsible for prosecution in all cases involving an ongoing or impending prosecution of any defendants who are or may be charged with severe forms of trafficking in persons in connection with the victimization of the applicant. Id. This provision complies with constitutional requirements that pertain to the government’s duty to disclose information, including exculpatory evidence or impeachment material, to defendants. See, e.g., U.S. Const. amends. V, VI; Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 154 (1972). DHS received seven comments relating to the provision that allows federal authorities and defendants in criminal proceedings to review any information from an application for T nonimmigrant status. Commenters suggested that the standard for disseminating information should be that: 1. Federal authorities should have to make a request in writing for release of information; 2. Prosecutors should be prohibited from releasing information to a defendant unless the information is needed for impeachment; and 3. In the event a prosecutor determines evidence to be exculpatory, a judge should review the information and give time for victim safety planning before information will be released. In the 2002 interim rule, DHS explained its position on timely disclosure of information, including DOJ’s obligation to provide statements by witnesses and certain other documents to defendants in pending criminal proceedings. See 67 FR at 4789. These obligations stem from constitutional, statutory and other legal requirements pertaining to the duty to disclose exculpatory evidence or impeachment material to a criminal defendant in order to prepare a defense. Id. DHS appreciates the need for confidentiality and especially the desire to protect the safety of victims. However, we must balance the need to take measures to protect victims from perpetrators with the need to comply with constitutional requirements, and DHS believes that the regulations as currently drafted reflects the best way to balance these considerations. In PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 92283 addition, the determination of whether constitutional or other legal obligations require disclosure in a criminal matter is a determination reserved to prosecuting attorneys. DHS therefore declines to amend its regulation regarding the dissemination of information, other than some minor edits to account for the creation of DHS and streamline the language. c. Use of Information on the T Nonimmigrant Status Application Commenters also raised concerns that the Application for T Nonimmigrant Status, Form I–914 warns that any information provided could be used to remove an unsuccessful applicant. The commenters asserted that this policy would hinder applications because victims may be reluctant to work with law enforcement if a victim thought he or she would be removed. USCIS does not have a policy to refer applicants for T nonimmigrant status for removal proceedings absent serious aggravating circumstances, such as the existence of an egregious criminal history, a threat to national security, or where the applicant is implicit in the trafficking. USCIS includes a standard warning on many applications that information within the application could lead to removal. USCIS believes it is a sound practice to warn applicants of this fact, and not including it would be unfair to applicants for whom such a warning could prove important. 2. Waivers of Grounds of Inadmissibility An applicant for T nonimmigrant status must be admissible to the United States, or otherwise obtain a waiver of any grounds of inadmissibility. In this rule, DHS is making the following changes and clarifications: • Clarifying the waiver authority for T nonimmigrants and the public charge exemption. New 8 CFR 212.16(b). • Changing the standard for exercising waiver authority only in ‘‘extraordinary circumstances’’ over criminal grounds of inadmissibility when the crime does not relate to the trafficking victimization. New 8 CFR 212.16(b)(2). • Removing language that waiver authority should not be exercised for inadmissibility grounds that may limit the ability of the applicant to adjust status. 8 CFR 212.16(b)(3). • Clarifying that DHS takes into account trafficking victimization when exercising waiver authority. New 8 CFR 212.16(b)(2). • Retaining the current separate waiver application process. New 8 CFR 212.16(a). E:\FR\FM\19DER5.SGM 19DER5 92284 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations • Clarifying the waiver process at adjustment of status. a. Waiver Authority for T Nonimmigrants Under INA section 212(d)(13), 8 U.S.C. 1182(d)(13), DHS has broad discretionary authority to waive grounds of inadmissibility.17 DHS may waive INA section 212(a)(1) (healthrelated grounds), 8 U.S.C. 1182(a)(1), if DHS considers it to be in the national interest to grant a waiver. See INA section 212(d)(13)(B)(i), 8 U.S.C. 1182(d)(13)(B)(i). DHS may waive almost any other ground of INA section 212(a), 8 U.S.C. 1182(a), if DHS considers it to be in the national interest to grant a waiver and determines that the activities rendering the applicant inadmissible were caused by, or were incident to, the trafficking victimization. See INA section 212(d)(13)(B)(ii), 8 U.S.C. 1182(d)(13)(B)(ii). DHS, however, may not waive INA sections 212(a)(3) (security and related grounds), (10)(C) (international child abduction), or (10)(E) (former U.S. citizens who renounced citizenship to avoid taxation), 8 U.S.C. 1182(a)(3), (10)(C), (10)(E). In addition, because INA section 212(a)(4) (public charge), 8 U.S.C. 1182(a)(4), does not apply to an applicant for T nonimmigrant status (but would apply at the time of adjustment of status to lawful permanent resident), see INA section 212(d)(13)(A), 8 U.S.C. 1182(d)(13)(A), no waiver of that ground is necessary. TVPRA 2003 added INA section 212(d)(13)(A), 8 U.S.C. 1182(d)(13)(A), to eliminate the public charge ground at the time the applicant seeks T nonimmigrant status. TVPRA 2003 section 4(b)(4), codified at INA section 212(d)(13)(A), 8 U.S.C. 1182(d)(13)(A). DHS is amending the regulations as necessary in this interim rule. See new 8 CFR 212.16(b). sradovich on DSK3GMQ082PROD with RULES5 b. Criminal Grounds of Inadmissibility DHS received 21 comments relating to different aspects of waivers of inadmissibility. Eight commenters objected to the language of 8 CFR 212.16(b)(2), stating that USCIS will exercise its discretion to waive criminal grounds of inadmissibility under INA 17 Section 212(d)(13)(B) of the INA states, in part, ‘‘[I]f the Secretary of Homeland Security considers it to be in the national interest to do so, the Secretary of Homeland Security, in the Attorney General’s discretion, may waive the application of’’ various grounds of inadmissibility. 8 U.S.C. 1182(d)(13)(B) (emphasis added). The vestigial reference to the Attorney General in that sentence is clearly a drafting oversight. DHS therefore reads the provision as referring, instead, to the Secretary’s discretion. VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 section 212(a)(2), 8 U.S.C. 1182(a)(2) (criminal and related grounds), only in ‘‘exceptional cases’’ where the criminal activity was not caused by or was not incident to the trafficking in persons. Commenters thought the language about ‘‘exceptional cases’’ was not statutorily required, replaced a simple exercise of discretion, and was unnecessary. In addition, commenters encouraged DHS to consider the type of crimes and the seriousness of the offenses when exercising discretion based on criminal grounds. DHS has the discretionary authority to waive the criminal grounds of inadmissibility for T nonimmigrant status applicants if the criminal activities were caused by or incident to the trafficking victimization. See INA section 212(d)(13)(B)(ii), 8 U.S.C. 1182(d)(13)(B)(ii). DHS implemented this provision in the 2002 interim rule and explained that it was choosing to exercise its discretion in cases where the criminal grounds of inadmissibility were not caused by or incident to trafficking, only in ‘‘exceptional cases.’’ See 67 FR 4789; 8 CFR 212.16(b)(2). In this interim rule, DHS is revising its regulations to describe how USCIS will consider the nature and seriousness of the offenses and the number of convictions in exercising its discretion. See new 8 CFR 212.16(b)(3). In this rule, DHS is replacing the general ‘‘exceptional cases’’ limitation. Instead, in cases where the applicant has a conviction for a violent or otherwise dangerous crime, DHS will allow waivers, in its discretion, in ‘‘extraordinary circumstances’’ only. See new 8 CFR 212.16(b)(3). A similar standard applies in the related U nonimmigrant status regulations at 8 CFR 212.17.18 c. Waivers Relating to Adjustment of Status Five commenters expressed concern with the language of 8 CFR 212.16(b)(3), stating that USCIS will exercise its discretion to waive grounds of inadmissibility that would prevent or limit the applicant from adjusting to permanent resident status only in exceptional cases. Commenters objected to the connection between inadmissibility at the application phase of T nonimmigrant status with inadmissibility at the adjustment of status phase. Commenters urged DHS to take note of INA section 245(l)(2), 8 U.S.C. 1255(l)(2), which provides a waiver authority for the adjustment of 18 This approach also is consistent with DHS and DOJ practice in other immigration contexts. See, e.g., 8 CFR 212.7(d) (INA section 212(h)(2) waivers); Matter of Jean, 23 I&N Dec. 373, 383 (A.G. 2002) (INA section 209(c) waivers). PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 status phase that is similar to the authority contained at INA section 212(d)(13), 8 U.S.C. 1182(d)(13). Since the publication of the 2002 interim rule, DHS published a rule on adjustment of status to permanent resident for T nonimmigrants. See 8 CFR 245.23 and Adjustment of Status to Lawful Permanent Resident for Aliens in T or U Nonimmigrant Status, 73 FR 75540 (Dec. 12, 2008). The regulations at 8 CFR 245.23 clarify that any grounds of inadmissibility waived at the time USCIS grants T nonimmigrant status will be considered waived for purposes of adjustment of status under INA section 245(l) and that any grounds of inadmissibility that an applicant acquires while in T nonimmigrant status require a new waiver. In this interim rule, DHS is removing 8 CFR 212.16(b)(3), as it is no longer necessary in light of the adjustment of status regulations. d. Waivers of Inadmissibility Grounds Related to the Trafficking Victimization A number of commenters expressed general concerns over particular grounds of inadmissibility that relate to victimization based on trafficking in persons. DHS received two comments about waivers of inadmissibility for those with the human immunodeficiency virus (HIV), one comment about waivers of inadmissibility for those engaged in prostitution, and one comment about waivers of inadmissibility for drug users. Commenters stated that victims may become HIV positive as a result of trafficking. Commenters noted that often trafficking victims are forced to engage in prostitution by traffickers, or continue in prostitution for basic survival. Commenters also expressed concern about victims who selfmedicate with illegal drugs to ease the effects of trauma and/or other psychological conditions due to the victimization they suffered. These commenters did not provide specific recommendations, beyond asking DHS to take special note of those concerns. DHS acknowledges that victims of trafficking in persons are an especially vulnerable population, and therefore considers the special circumstances of victims when exercising its waiver authority. As of January 4, 2010, HIV infection is no longer defined as a ‘‘communicable disease of public health significance’’ according to HHS regulations. See 74 FR 56547 (Nov. 2, 2009) (effective Jan. 4, 2010). Therefore, HIV infection does not make an applicant inadmissible on health-related grounds for any immigration benefit. In addition, USCIS personnel who E:\FR\FM\19DER5.SGM 19DER5 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES5 adjudicate applications for T nonimmigrant status and waivers of inadmissibility are trained on various aspects of the dynamics of victimization. DHS has not made any changes to the regulation as a result of these comments. e. Requesting a Waiver In the 2002 interim rule, DHS directed applicants to file the form designated by USCIS to request a waiver of inadmissibility. See 8 CFR 212.16(a). This form is the Application for Advance Permission to Enter as Nonimmigrant, Form I–192.19 Five commenters asserted that this waiver application procedure was overly complicated and suggested a simpler procedure of providing space on the Application for T Nonimmigrant Status, Form I–914, itself for victims to explain any grounds of inadmissibility and attach evidence. DHS is not adopting the suggestion. DHS is concerned that additional inadmissibility concerns can arise after an application for T nonimmigrant status is approved. Without a waiver of inadmissibility on a separate form, USCIS would be unable to address inadmissibility concerns other than to revisit the underlying approval itself, which could cause problems for the applicant. In addition, USCIS has developed a process with DOS for eligible family members abroad so that DOS officers are made aware of the inadmissibility grounds waived by USCIS. This process might be compromised if a separate waiver form were not used, resulting in potential delays or problems for eligible family members consular processing to apply for admission to the United States. DHS believes the Application for Advance Permission to Enter as Nonimmigrant, Form I–192 process is working well and does not need to be modified at this time; however, DHS welcomes further comments on this process. In addition, one commenter asserted that the waiver application process at the time of adjustment was burdensome. The commenter recommended sparing victims from applying for a waiver of inadmissibility both at the time of application and the time of adjustment of status. Since publication of the 2002 interim rule, DHS published an interim rule with request for comments on adjustment of status to lawful 19 On August 29, 2011, as part of USCIS’s business transformation initiative, USCIS replaced specific references to Form I–192 to read, ‘‘the form designated by USCIS.’’ Immigration Benefits Business Transformation, Increment I, Final Rule, 76 FR 53764 (Aug. 29, 2013), at 53788. VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 permanent resident for T nonimmigrants. See 8 CFR 245.23 and 73 FR 75540. The regulations only require a new request for a waiver of inadmissibility at the adjustment of status phase for any new ground of inadmissibility that has arisen since the grant of T nonimmigrant status. Typically, T nonimmigrants applying for adjustment of status do not need to file a request for a new waiver of inadmissibility for inadmissibility grounds that were waived at the T nonimmigrant stage. In this interim rule, DHS is mainly addressing the T nonimmigrant application phase; DHS will consider comments and recommendations that relate to adjustment of status in a separate rulemaking. 3. Decisions At new 8 CFR 214.11(d)(8)–(10), DHS describes approval and denial procedures for applications for T nonimmigrant status. USCIS will issue written decisions to grant or deny T nonimmigrant status. If USCIS denies an application, it will provide written reasons for the denial. In any case where USCIS denies an application for T nonimmigrant status, an applicant may appeal to the USCIS Administrative Appeals Office (AAO) under established procedures in 8 CFR 103.3. 4. Benefits DHS provides for employment authorization incident to a grant of principal T nonimmigrant status. See 8 CFR 214.11(l)(4). One commenter pointed out that even after a bona fide determination is made, the applicant would not receive an employment authorization document (EAD) until T nonimmigrant status is granted. This commenter highlighted this fact because, even though a victim could be certified by HHS on the basis of a bona fide application, he or she would not be eligible for certain types of cash assistance and would not be accepted into the federal Matching Grant Program. This commenter recommended granting an EAD when USCIS determined that an application is bona fide. DHS is authorized to grant an EAD in connection with a bona fide determination. See Memorandum from Stuart Anderson, Executive Associate Commissioner, Office of Policy and Planning, INS, Deferred Action for Aliens with Bona Fide Applications for T Nonimmigrant Status (May 8, 2002). In its discretion, USCIS may grant deferred action to an applicant when a T nonimmigrant application is deemed bona fide, while awaiting final adjudication. Id. Once an application is PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 92285 deemed bona fide and USCIS grants deferred action, the applicant can request employment authorization based on the grant of deferred action. See 8 CFR 274a.12(c)(14). 5. Duration of Status Originally, T nonimmigrant status was granted for a period of 3 years from the date of approval. See 8 CFR 214.11(p) (2002). Upon approval, USCIS would notify the recipient of the future expiration of his or her nonimmigrant status and of a requirement to apply for adjustment of status to permanent resident within the 90 days immediately preceding the third anniversary of the approval. Id. At the time of the 2002 interim rule, there was no ability to extend T nonimmigrant status. Id. DHS provided that an applicant who properly applied for adjustment of status would remain in T nonimmigrant status until a final decision was rendered on the application. Id. DHS received seven comments related to the 90 day adjustment of status application period requirement. In 2008, DHS published an interim rule implementing adjustment of status procedures for T and U nonimmigrants. See 73 FR 75540. DHS amended 8 CFR 214.11(p) to incorporate VAWA 2005 legislative changes that lengthened the duration of status from 3 years to 4 years, but also limited the status to 4 years unless an applicant could qualify for an extension. See VAWA 2005 section 821(a), INA section 214(o)(7)(A), 8 U.S.C. 1184(o)(7)(A). DHS also removed the 90-day adjustment of status application period requirement; instead, a T nonimmigrant may apply for adjustment of status after accruing three years in valid T nonimmigrant status. See 8 CFR 245.23(a)(3). 6. Extension of Status Commenters on the 2002 interim rule also objected to the lack of extensions available for T nonimmigrant status. Since the publication of the 2002 interim rule, legislation allowed for extensions of T nonimmigrant status in the following circumstances: • An LEA, prosecutor, judge, or other authority investigating or prosecuting activity relating to human trafficking certifies that the presence of the victim in the United States is necessary to assist in the investigation or prosecution of such activity; 20 20 See VAWA 2005 section 821(a); INA section 214(o)(7)(B)(i), 8 U.S.C. 1184(o)(7)(B)(i). E:\FR\FM\19DER5.SGM 19DER5 92286 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations • DHS determines that an extension is warranted due to exceptional circumstances; 21 or • During the pendency of an application for adjustment of status under INA section 245(l), 8 U.S.C. 1255(l).22 INA section 214(o)(7)(B) and (C), 8 U.S.C. 1184(o)(7)(B) and (C). DHS is implementing the extension of status provisions at new 8 CFR 214.11(l).23 Below, DHS discusses each extension category in turn. sradovich on DSK3GMQ082PROD with RULES5 a. Extension of Status for Law Enforcement Need In this interim rule, DHS is implementing the discretionary extensions for law enforcement need at new 8 CFR 214.11(l)(1)(i). The T nonimmigrant bears the burden of establishing eligibility for an extension of status. Id. As outlined in new 8 CFR 214.11(l)(2), to request an extension, the T nonimmigrant will file an Application to Extend/Change Nonimmigrant Status, Form I–539, along with supporting evidence. The Application to Extend/ Change Nonimmigrant Status should be filed before the individual’s T nonimmigrant status expires. To establish law enforcement need, supporting evidence may include a newly executed Declaration of Law Enforcement Officer for Victim of Trafficking in Persons, Form 914 Supplement B, or other evidence from a law enforcement official, prosecutor, judge, or other authority who can investigate or prosecute human trafficking activity and was involved in the applicable case (e.g., a letter on the agency’s letterhead, emails, or faxes). See new 8 CFR 214.11(l)(5). The applicant must include evidence that comes directly from an LEA (as listed above). Id. The applicant may also submit any other credible evidence. Id. DHS believes this is necessary under INA section 214(o)(7)(B)(i), 8 U.S.C. 1184(o)(7)(B)(i), because that section allows for an extension only if a law 21 See TVPRA 2008 section 201(b)(1); INA section 214(o)(7)(B)(iii), 8 U.S.C. 1184(o)(7)(B)(iii). 22 See TVPRA 2008 section 201(b)(2); INA section 214(o)(7)(C), 8 U.S.C. 1184(o)(7)(C). 23 In addition, TVPRA 2008 provided an extension of status for T nonimmigrants who were eligible for adjustment of status relief under INA section 245(l), 8 U.S.C. 1255(l), but could not obtain adjustment of status relief because DHS had not issued implementing regulations. See TVPRA 2008 section 201(b)(1); INA section 214(o)(7)(B)(ii), 8 U.S.C. 1184(o)(7)(B)(ii). TVPRA 2008 was enacted on December 23, 2008. DHS issued regulations on adjustment of status on December 12, 2008. See 73 FR 75540. Therefore, when TVPRA 2008 was enacted, regulations on adjustment of status existed. Because INA section 214(o)(7)(B)(ii), 8 U.S.C. 1184(o)(7)(B)(ii), is obsolete, DHS will not reference this language in this interim rule. VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 enforcement official (which includes prosecutors, judges, and others with the authority to investigate or prosecute human trafficking) at the Federal, State, or local level ‘‘certifies’’ that the presence of the victim is necessary. The use of the word ‘‘certifies’’ does not allow for the substitution of evidence that does not come directly from an LEA. Applicants are not required to use Declaration of Law Enforcement Officer for Victim of Trafficking in Persons, Form I–914 Supplement B, to seek an extension of T nonimmigrant status. b. Extension of Status for Exceptional Circumstances In this interim rule, DHS is implementing the discretionary extensions for exceptional circumstances at new 8 CFR 214.11(l)(1)(ii). As described above, to request an extension, the T nonimmigrant will file an Application to Extend/Change Nonimmigrant Status, Form I–539, along with supporting evidence. New 8 CFR 214.11(l)(2). An applicant may submit his or her own statement and any other credible evidence to establish exceptional circumstances for an extension of status. Such evidence could include, but is not limited to, medical records, police or court records, news articles, correspondence with an embassy or consulate, and affidavits of witnesses. See new 8 CFR 214.11(l)(6). An exceptional circumstance could exist when a principal T nonimmigrant’s status will expire and an approved family member had not yet received a T visa from a consulate to apply for admission to the United States. In this example, without an extension, if the principal T nonimmigrant’s status expires, the family member could not apply for a T visa to apply for admission to the United States. In the evidence submitted to establish exceptional circumstances in this example, the principal should explain what exceptional circumstances prevented the family member(s) from applying for admission to the United States. Applicants should apply for an extension before the T nonimmigrant status has expired. USCIS, however, has discretion to grant an extension after T nonimmigrant status expires. See new 8 CFR 214.11(l)(3). The T nonimmigrant should explain in writing, in accordance with 8 CFR 214.1(c)(4), why he or she is filing the Application to Extend/ Change Nonimmigrant Status, Form I– 539, after the T nonimmigrant status has expired. If USCIS grants an extension of T nonimmigrant status, USCIS will issue a new Notice of Action valid from the date the previous status expired PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 until 1 year after approval of the extension. Once an applicant receives this new Notice of Action, he or she may then file an Application to Register Permanent Residence or Adjust Status, Form I–485, to adjust status to lawful permanent resident before the extension expires. c. Extension of Status While an Application for Adjustment of Status Is Pending In this interim rule, DHS implements a mandatory extension for those who apply for adjustment of status at new 8 CFR 214.11(l)(7), and does not require a separate application or additional supporting evidence to request an extension of status when an application for adjustment of status has been properly filed. INA section 214(o)(7)(C), 8 U.S.C. 1184(o)(7)(C), requires USCIS to grant this extension; therefore no evidentiary burden rests on the applicant. 7. Waiting List Congress has established a 5,000person limit on the number of grants of T–1 nonimmigrant status per fiscal year (from October 1 through September 30). See INA section 214(o)(2)–(3), 8 U.S.C. 1184(o)(2)–(3). In the 2002 interim rule, DHS implemented a waiting list procedure in the event that the numerical limit is reached in a particular fiscal year. See former 8 CFR 214.11(m)(2). USCIS has not had to utilize the waiting list procedure created in the 2002 interim rule because approvals have not approached 5,000 in any given fiscal year. The 2002 interim rule provided that an applicant on the waiting list would ‘‘maintain his or her current means to prevent removal.’’ Id. DHS received three comments pointing out that DHS did not address protection from removal for those without current means. The commenters urged DHS to provide protection from removal or a legal means to stay in the United States for this population of applicants. DHS agrees with this comment, and has determined that this provision is superfluous and confusing. DHS has therefore removed the provision, to clarify that applicants who may be placed on the waiting list for T nonimmigrant status can either maintain their ‘‘current means’’ to prevent removal (deferred action, parole, or stay of removal) and any employment authorization, or attain ‘‘new means.’’ See new 8 CFR 214.11(j)(2). Although DHS retains the authority to protect applicants on the waiting list from being removed, the 2002 interim E:\FR\FM\19DER5.SGM 19DER5 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations (which is provided for in another ground of revocation). DHS agrees that the ground of revocation on notice at 8 CFR 214.11(s)(1)(i) could benefit from greater clarification. The requirements of INA section 101(a)(15)(T), 8 U.S.C. 1101(a)(15)(T) generally are victimization, physical presence, compliance with any reasonable LEA request for assistance, and extreme hardship involving unusual and severe harm if the applicant is removed. If USCIS has evidence that one of these requirements was not met, it could revoke under 8 CFR 214.11(s)(1)(ii). If the violation is based on a victim not complying with reasonable requests, USCIS could revoke under 8 CFR 214.11(s)(1)(iv) or (v), based on information from an LEA or a withdrawal or disavowal of an LEA endorsement (bullets 4 and 5 above, respectively). In this interim rule, DHS is therefore removing 8 CFR 214.11(s)(1)(i). See new 8 CFR 214.11(m)(2). Relatedly, for clarity, DHS is incorporating a statutory citation into the ‘‘errant approval’’ ground of revocation (bullet 2 above). Id. 8. Revocation In the 2002 interim rule, DHS created several grounds for revocation on notice at 8 CFR 214.11(s). T nonimmigrant status could be revoked on notice if: • The T nonimmigrant violated the requirements of T nonimmigrant status; • The approval of the T nonimmigrant application violated 8 CFR 214.11 or involved an error in preparation, procedure, or adjudication; • In the case of a T–2 spouse, the T– 2 spouse’s divorce from the T–1 principal became final; • The LEA notifies USCIS that the principal T nonimmigrant has unreasonably refused to cooperate with the investigation or prosecution and provides USCIS with a detailed explanation in writing; or • The LEA withdraws its endorsement or disavows the contents of the endorsement in a detailed written explanation. sradovich on DSK3GMQ082PROD with RULES5 rule’s implication that the applicant may not seek other means to prevent removal was problematic. DHS has existing policies, procedures, and regulations for exercising its discretion in providing parole, deferred action, or a stay of removal to individuals on a case-by-case basis. See, e.g., 8 CFR 241.6 (administrative stay of removal); 8 CFR 274a.12(c)(14) (employment authorization for deferred action grantees demonstrating economic necessity); 8 CFR 212.5 (parole of aliens into the United States). DHS will consider providing temporary relief on a case by case basis to applicants on the waiting-list who are participating in law-enforcement investigations in the United States pursuant to those policies, regulations and procedures. This change maintains the protections in the previous regulation while providing DHS and the applicant with more flexibility, particularly as to those applicants who may have no ‘‘current means’’ to prevent removal, and allows applicants the flexibility to seek alternate avenues of relief if their ‘‘current means’’ may not be sustainable or the most beneficial. b. Revocation Based on Information Provided by Law Enforcement Commenters were also concerned that an LEA could provide information to USCIS that a victim is no longer cooperating and this information could serve as the basis for revocation. The commenters noted that revocation could be problematic in these cases, because USCIS would have already determined the individual would face extreme hardship involving unusual and severe harm if removed. DHS is not persuaded that there is a problem with receiving information from an LEA about a victim with T nonimmigrant status. Consistent with the goals of the TVPA, DHS must balance law enforcement needs with the protection of victims of trafficking. Law enforcement may provide USCIS with valuable probative information, and it would be illogical for USCIS to reject this information solely because it came from an LEA or because USCIS made a prior adjudication of eligibility. USCIS does not revoke automatically upon receiving this LEA information; rather, it can revoke after providing notice to the T nonimmigrant of the intent to revoke and an opportunity for the victim to respond. As new 8 CFR 214.11(m)(2) and 8 CFR 103.3 explain, USCIS will issue a notice of intent to revoke in writing, providing the applicant with an opportunity to respond, and potentially provide additional evidence to rebut the a. Streamlining Revocation Based on Violation of the Requirements of T Nonimmigrant Status Six commenters asserted that the ground of revocation at 8 CFR 214.11(s)(1)(i), based on a violation of the requirements of the status by the T nonimmigrant, needs clarification. Commenters suggested that the meaning is unclear because if the applicant satisfied the eligibility requirements, the status should not be revoked, unless there was an error in granting the status VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 92287 information provided by the LEA. USCIS will accept any relevant evidence under new 8 CFR 214.11(d)(2)(ii) and (3). Evidence could include, but is not limited to, information about the mental or physical health of the applicant, including any ongoing trauma, information about the safety concerns involved for the applicant or his or her family, information about how the victim has been cooperative, information about the disposition of the case, or information about how the LEA requests were not reasonable. Id. USCIS will then review all the evidence considering the totality of the circumstances, and will not revoke based solely on any one factor or piece of evidence, including the information provided by the LEA. When USCIS initially approves the T nonimmigrant status, including making the determination that the victim would face extreme hardship upon removal, USCIS also accounts for victimization and compliance with reasonable requests. If USCIS learns after approval that there are grounds sufficient for revocation under new 8 CFR 214.11(m), USCIS may exercise its discretion to revoke the T nonimmigrant status. c. Revocation of Derivative Nonimmigrant Status In this interim rule, DHS is adding a ground for automatic revocation applicable only to family members outside of the United States. DHS will revoke an approved derivative application if the family member notifies USCIS that he or she will not apply for admission into the United States. See new 8 CFR 214.11(m)(1). This provision closely mirrors a provision in the U nonimmigrant status regulations at 8 CFR 214.14(h)(1). 9. Technical Fix for T Nonimmigrants Residing in the CNMI Physical presence in the CNMI will be considered in determining whether an applicant for T nonimmigrant status meets the physical presence requirement. See INA section 101(a)(15)(T)(i)(II); 8 CFR 214.11(b)(2); see also INA section 101(a)(38) (defining ‘‘United States’’ for immigration purposes as including the CNMI). Prior to the federalization of CNMI immigration law on November 28, 2009, victims in the CNMI had to travel to Guam or elsewhere in the United States to actually be admitted as a T nonimmigrant. See Title VII of the Consolidated Natural Resources Act of 2008 (CNRA), Public Law 110–229, 122 Stat. 754 (2008) (effectively replacing the CNMI’s immigration laws with the INA and other applicable U.S. E:\FR\FM\19DER5.SGM 19DER5 92288 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES5 immigration laws, with few exceptions). The adjustment of status provisions for T nonimmigrants require 3 years of continuous physical presence in the United States since admission as a T nonimmigrant. See INA section 245(l)(1)(A), 8 U.S.C. 1255(l)(1)(A). An approved T nonimmigrant in the CNMI would not accrue this time in the United States for purposes of adjustment of status until on or after November 28, 2009, when the CNRA took effect, and only if he or she was actually admitted to the United States. The CNRA included a rule of construction that time in the CNMI before November 28, 2009 does not count as time in the United States (except for limited purposes). See CNRA section 705(c). VAWA 2013 added a new exception to this rule, so that time in the CNMI, whether before or after November 28, 2009, counts as time admitted as a T nonimmigrant for establishing physical presence for purposes of adjustment of status to lawful permanent residence, so long as the applicant was granted T nonimmigrant status. See VAWA 2013, tit. viii, section 809. DHS interprets this to mean that when T nonimmigrant status was granted to an individual in the CNMI, the 3-year continuous physical presence required for adjustment of status began to run at that time, even if he or she was not actually admitted in T nonimmigrant status. See new 8 CFR 245.23(a)(3)(ii). D. Filing and Biometric Services Fees DHS received 17 comments on the interim rule regarding fees. Commenters thought application fees for T nonimmigrant status, derivative T nonimmigrant status, and waivers of inadmissibility were excessive and burdensome. Some commenters recommended eliminating or greatly reducing fees associated with applying for T nonimmigrant status, especially for minor victims. Since the publication of the 2002 interim rule, intervening events resolved commenters’ concerns. In 2007, DHS eliminated the fee to file the Application for T Nonimmigrant Status, Form I–914, and the Application for Family Member of a T–1 Recipient, Form I–914 Supplement A. See Adjustment of the Immigration and Naturalization Benefit Application and Petition Fee Schedule, 72 FR 29851, at 29865 (Feb. 1, 2007). Further, USCIS may waive the fee for any request from the time of application for T nonimmigrant status until USCIS adjudicates an application for adjustment of status. See TVPRA 2008 section 201(d)(3); INA section 245(l)(7), VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 8 U.S.C. 1255(l)(7). DHS added this waiver authority at 8 CFR 103.7(c)(3)(xviii). See U.S. Citizenship and Immigration Services Fee Schedule, 75 FR 58961 (Sept. 24, 2010). Thus, an applicant may request a fee waiver for any other form associated with the application for T nonimmigrant status. DHS will require biometric services for all applicants for T nonimmigrant status between the ages of 14 and 79. See new 8 CFR 214.11(d)(4) and 8 CFR 103.16 (providing that any individual may be required to submit biometric information if the regulations or form instructions require such information).24 In addition, regarding the biometric services fee, at the time of the 2002 interim rule, DHS charged applicants for biometric services. DHS regulations now provide that no fee will be charged for biometric services for T nonimmigrant applicants. See 8 CFR 103.7(b)(1)(i)(C)(3); U.S. Citizenship and Immigration Services Fee Schedule; Final Rule, 75 FR 58962, 58991, 58967, 58986 (Sept. 24, 2010). One commenter suggested that taking fingerprints as part of the application process was duplicative since many victims have already had fingerprints taken. Biometric capture is a necessary measure in any USCIS application process to ensure identity and prevent fraud. USCIS must determine the identity of the individual through biometric capture. In addition, not all victims of trafficking or all applicants for T nonimmigrant status will have had contact with law enforcement or have had fingerprints taken by law enforcement and USCIS will not have access to the applicant’s fingerprints from those who do. DHS will not amend its general biometric capture requirements as requested by the commenter. DHS, however, is removing the requirement at 8 CFR 214.11(d)(2)(ii) that applicants submit three photographs with an application for T nonimmigrant status. At the time of the 2002 interim rule, the DHS biometric process did not include taking photographs of applicants. USCIS now takes photographs when capturing biometrics, so this requirement is no longer necessary. 24 Any individual may be required to submit biometric information if the regulations or form instructions require such information or if requested in accordance with 8 CFR 103.2(b)(9). DHS may collect and store for present or future use, by electronic or other means, the biometric information submitted by an individual. DHS may use this biometric information to conduct background and security checks, adjudicate immigration and naturalization benefits, and perform other functions related to administering and enforcing the immigration and naturalization laws. 8 CFR 103.16(a). PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 V. Regulatory Requirements A. Administrative Procedure Act As explained below, the changes made in this interim rule do not require advance notice and opportunity for public comment, because they are (1) required by various legislative revisions, (2) exempt as procedural under 5 U.S.C. 553(b)(A), (3) logical outgrowths of the 2002 interim rule, or (4) exempt from public comment under the ‘‘good cause’’ exception to notice-and-comment under 5 U.S.C. 553(b)(B). DHS nevertheless invites written comments on this interim rule, and will consider any timely submitted comments in preparing a final rule. 1. Statutorily Required Changes As noted elsewhere in the preamble, DHS is conforming its T nonimmigrant regulations to statutory changes that provide little agency discretion in their interpretation and promulgation. When regulations merely restate the statute they implement (i.e., when the rule does not change the established legal order), the APA does not require the agency to use notice-and-comment procedures. See 5 U.S.C. 553(b)(B); Gray Panthers Advocacy Comm. v. Sullivan, 936 F.2d 1284, 1291 (D.C. Cir. 1991). So long as the agency does not expand the substantive reach of the statute to impose new obligations, penalties, or substantive eligibility requirements— i.e., so long as the agency ‘‘merely restate[s]’’ the statute—notice and comment are unnecessary. See World Duty Free Americas, Inc. v. Summers, 94 F. Supp. 2d 61, 65 (D.D.C. 2000). The following changes meet these criteria: (a) Victims who leave the United States and are allowed reentry for participation in investigative or judicial processes are eligible. New 8 CFR 214.11(b)(2), (g)(1)(v), (g)(2)(iii). INA 101(a)(15)(T)(i)(II), as amended by TVPRA 2008 section 201(a)(1)(C). As discussed above in the preamble, section 201(a)(1)(C) of TVPRA 2008 amended section 101(a)(15)(T)(i)(II) of the INA, 8 U.S.C. 1101(a)(15)(T)(i)(II), to include physical presence on account of the victim having been allowed to enter the United States to participate in investigative or judicial processes associated with an act or perpetrator of trafficking. DHS codifies this change in this rule at new 8 CFR 214.11(b)(2) and 214.11(g)(1)(v), which provide, respectively, that, ‘‘the alien is physically present in the United States,’’ and the presence requirement reaches an alien who is present, ‘‘on account of the alien having been allowed entry into the United States for participation in investigative or judicial processes E:\FR\FM\19DER5.SGM 19DER5 sradovich on DSK3GMQ082PROD with RULES5 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations associated with an act or perpetrator of trafficking.’’ This change in regulation merely codifies intervening statutory changes. Advance notice and opportunity for public comment are therefore unnecessary. Incident to expanding the definition of presence as described above, this rule also establishes that applicants claiming entry into the United States for participation in investigative or judicial processes must document that their entry was valid and that it was for participation in investigative or judicial processes associated with trafficking. New 8 CFR 214.11(g)(3). This provision makes no changes to the established legal order, other than to reiterate the public’s statutory rights and establish procedures for adjudication. Similar to a number of other evidentiary requirements in this rule, the documentation requirement affords the public maximum flexibility in presenting their case to the agency. The change does not impose any limitation on the types of evidence that would be acceptable to show valid entry. Advance notice and opportunity for public comment are therefore unnecessary. (b) Victims of trafficking which occurred abroad, who have been allowed entry for investigative or judicial processes, are eligible. New 8 CFR 214.11(b)(2), (g)(1)(v), (g)(3). INA section 101(a)(15)(T)(i)(II), 8 U.S.C. 1101(a)(15)(T)(i). As noted above, DHS is revising its regulations at new 8 CFR 214.11(g)(3) to provide that the victim may be physically present in the United States on account of having been allowed initial entry into the United States for participation in investigative or judicial processes associated with an act or perpetrator of trafficking that did not occur in the United States. This change expands the scope of the regulation as required by section 201(a)(1)(C) of TVPRA 2008 to account for eligibility when the trafficking occurred abroad but the victim was allowed entry into the United States for participation in investigative or judicial processes associated with an act or perpetrator of trafficking. Similar to the change described directly above, this change in regulation merely codifies intervening statutory changes. Advance notice and opportunity for public comment are therefore unnecessary. (c) Exemption for victims under 18 years old from compliance with any reasonable request for assistance. INA section 101(a)(15)(T)(i)(III)(bb) and (cc), 8 U.S.C. 1101(a)(15)(T)(i)(III)(bb) and (cc); new 8 CFR 214.11(b)(3)(i), (ii). Under the 2002 interim rule, persons under the age of 15 were not required VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 to comply with any reasonable request for assistance in a prosecution or investigation from an LEA. Former 8 CFR 214.11(b)(3)(ii). The statute was amended by TVPRA 2008 to exempt from this requirement children under 18 years of age. See INA section 101(a)(15)(T)(i)(III)(bb) and (cc), 8 U.S.C. 1101(a)(15)(T)(i)(III)(bb) and (cc). In this rule, DHS is codifying the intervening statutory changes without modification.25 New 8 CFR 214.11(b)(3)(i) and (ii). (d) Exemption for victims who suffer trauma from compliance with reasonable requests for assistance. INA section 101(a)(15)(T)(i)(III)(bb), 8 U.S.C. 1101(a)(15)(T)(i)(III)(bb); New 8 CFR 214.11(h)(4)(i). INA section 101(a)(15)(T)(i)(III)(aa), 8 U.S.C. 1101(a)(15)(T)(i)(III)(aa) requires that victims comply with any reasonable request for assistance from an LEA, but the INA exempts victims who are, ‘‘unable to cooperate with a request described in item (aa) due to physical or psychological trauma.’’ INA section 101(a)(15)(T)(i)(III)(bb), 8 U.S.C. 1101(a)(15)(T)(i)(III)(bb). DHS provides in this rule that, if the applicant is unable to cooperate with a reasonable request due to physical or psychological trauma or age, an applicant who has not had contact with an LEA or who has not complied with any reasonable request may be exempt from the requirement to comply with any reasonable request for assistance in an investigation or prosecution. New 8 CFR 214.11(h)(4)(i). In this rule, DHS is codifying the intervening statutory changes without modification.26 This rule also establishes general procedures for an applicant to demonstrate the trauma necessary for this exception. The victim will be required to submit evidence of the trauma by submitting an affirmative statement describing the trauma and any other credible evidence. This includes, for instance, a signed statement from a qualified professional, such as a medical professional, social worker, or victim advocate, who attests to the victim’s mental state, and medical, psychological, or other records which are relevant to the trauma. Id. USCIS reserves the authority and discretion to contact the law enforcement agency 25 USCIS has implemented this change in practice. See Mem. from Paul Novak, Director, Vermont Service Center, USCIS, Trafficking Victims Protection Reauthorization Act of 2003 (Apr. 15, 2004). 26 USCIS has implemented the trauma exception in practice. See Mem. from Paul Novak, Director, Vermont Service Center, USCIS, Trafficking Victims Protection Reauthorization Act of 2003 (Apr. 15, 2004). PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 92289 involved in the case, if appropriate. Id. These provisions are procedural and make no changes to the established legal order, other than to reiterate the public’s statutory rights. Although notice-andcomment requirements do not apply to this provision, DHS welcomes comments from the public on this matter. (e) Requirement to notify HHS upon discovering that a person under the age of 18 may be a victim of trafficking. TVPRA 2008 section 212(a)(2); New 8 CFR 214.11(d)(1)(iii). Federal agencies must notify HHS within 48 hours upon (1) apprehension or discovery of an unaccompanied alien child or (2) any claim or suspicion that an alien in custody is under 18 years of age. See TVPRA 2008 section 235(b)(2), codified at 8 U.S.C. 1232(b)(2). In addition, to facilitate the provision of public benefits to trafficking victims, federal agencies must notify HHS not later than 24 hours after discovering that a person under the age of 18 may be a victim of a severe form of trafficking in persons. See TVPRA 2008 section 212(a)(2), codified at 22 U.S.C. 7105(b)(1)(G). In this rule, DHS is codifying the statutory changes without modification; receipt of a T nonimmigrant status application from a minor will result in DHS notifying HHS. See new 8 CFR 214.11(d)(1)(iii). (f) Expansion of family members an alien victim is permitted to apply for derivative T nonimmigrant status. INA section 101(a)(15)(T)(ii)(I), 8 U.S.C. 1101(a)(15)(T)(ii)(I). New 8 CFR 214.11(k)(1)(ii), (iii). The INA allows a principal applicant under 21 years of age to apply for admission in T nonimmigrant status of his or her parents and unmarried siblings under 18 years of age. See INA section 101(a)(15)(T)(ii)(I), 8 U.S.C. 1101(a)(15)(T)(ii)(I). In addition, the INA allows any principal, regardless of age, to apply for parents or unmarried siblings under 18 years of age if the family member faces a present danger of retaliation as a result of the principal’s escape from the severe form of trafficking in persons or his or her cooperation with law enforcement. See INA section 101(a)(15)(T)(ii)(III), 8 U.S.C. 1101(a)(15)(T)(ii)(III). Finally, any principal, regardless of age, may apply for the adult or minor children of the principal’s derivative family members if the derivative’s child faces a present danger of retaliation as a result of the principal’s escape from the severe form of trafficking or cooperation with law enforcement. See INA section 101(a)(15)(T)(ii)(III), 8 U.S.C. 1101(a)(15)(T)(ii)(III). E:\FR\FM\19DER5.SGM 19DER5 92290 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES5 In this rule, DHS is codifying the change made by TVPRA 2003 to expand eligibility by allowing a victim granted T–1 nonimmigrant status (principal) to apply for the admission of his or her spouse, child, and, if the principal is under 21 years of age, his or her parent, or unmarried sibling under the age of 18. New 8 CFR 214.11(k)(1)(ii). In addition, DHS is codifying the change made by TVPRA 2003 that provides that, regardless of the age of the principal, if the eligible family member faces a present danger of retaliation as a result of the principal’s escape from trafficking or cooperation with law enforcement, the principal alien can apply for the admission of his or her parents. New 8 CFR 214.11(k)(1)(iii). Finally, DHS is codifying the change made in VAWA 2013 that permits the adult or minor children of a principal’s derivative family member to be an eligible family member if he or she faces a present danger of retaliation. Id. DHS is codifying these statutory changes without modification; notice and comment thereon are therefore unnecessary.27 Finally, this rule includes a procedural provision at new 8 CFR 214.11(k)(3) requiring the principal applicant to demonstrate that the derivative applicant is a family member who meets one of the categories in new 8 CFR 214.11(k)(1)(ii)–(iii), i.e., that the family member meets statutory eligibility requirements as a family member accompanying or following to join the principal applicant. Similar to a number of other evidentiary requirements in this rule, the documentation requirement concerning eligible family members affords the public maximum flexibility in presenting their case to the agency. DHS nonetheless invites public comment on this matter. 27 USCIS implemented the statutory directive to allow a T–1 to apply for their spouse, child, and, if the principal is under 21 years of age, their parent, or unmarried sibling under the age of 18 in a policy memorandum dated April 15, 2004. See Mem. from Paul Novak, Director, Vermont Service Center, USCIS, Trafficking Victims Protection Reauthorization Act of 2003 (Apr. 15, 2004). USCIS has also implemented the change allowing the principal, regardless of his or her age, to apply for the admission of parents, unmarried siblings under the age of 18, or the adult or minor children of their derivative family members if the family member faces a present danger of retaliation as a result of the principal’s escape from trafficking or cooperation with law enforcement was implemented by USCIS in a memorandum dated July 21, 2010. See Mem., USCIS, William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008: Changes to T and U Nonimmigrant Status and Adjustment of Status Provisions; Revisions to Adjudicators Field Manual (AFM) Chapters 23.5 and 39 (AFM Update AD10– 38) (July 21, 2010). VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 (g) Age-out protection for child principal applicant to petition for eligible family members. INA section 214(o)(5), 8 U.S.C. 1184(o)(5). New 8 CFR 214.11(k)(5)(ii). TVPRA 2003 section 4(b)(2)(B) revised the INA to provide that a principal who files an application for T nonimmigrant status while under 21 years of age will continue to be eligible even if the principal turns 21 while the application is pending. INA section 214(o)(5), 8 U.S.C. 1184(o)(5). DHS has revised the regulations in this rule to provide that a principal who was under 21 years of age at the time of filing for T–1 status can file an Application for Family Member of T–1 Recipient, Form I–914 Supplement A, to include T–4 parents even if the principal turns 21 years of age before the principal’s T–1 application is adjudicated. See new 8 CFR 214.11(k)(5)(ii). DHS is codifying this statutory change without modification; notice and comment thereon are therefore unnecessary.28 (h) The unmarried sibling of a child principal need only be under 18 years of age when the child principal files for T–1 status. INA section 101(a)(15)(T)(ii)(I), 8 U.S.C. 1101(a)(15)(T)(ii)(I). New 8 CFR 214.11(k)(5)(ii). TVPRA 2003 sections 4(b)(1)(B) and (b)(2) provide that a principal under 21 years of age may apply for admission of his or her parents and unmarried siblings under 18 years of age. Thus, the INA now provides that an unmarried sibling who is seeking status as a T–5 derivative of a principal T–1 applicant under 21 years of age need only be under the age of 18 at the time the principal T–1 applicant files for T–1 nonimmigrant status. INA section 101(a)(15)(T)(ii)(I), 8 U.S.C. 1101(a)(15)(T)(ii)(I). It does not matter if the unmarried sibling turns 18 years of age between the time the principal files his or her own application and before the principal files the application for his or her sibling. Id. The age of an unmarried sibling when USCIS adjudicates the T–1 application, when the unmarried sibling files the derivative application, when USCIS adjudicates the derivative application, or when the unmarried sibling is admitted to the United States does not affect eligibility. 8 CFR 214.11(k)(5)(ii). DHS is codifying this statutory change without modification; notice and 28 USCIS has already implemented this change in a policy memorandum dated April 15, 2004. See Mem. from Paul Novak, Director, Vermont Service Center, USCIS, Trafficking Victims Protection Reauthorization Act of 2003 (Apr. 15, 2004). PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 comment thereon are therefore unnecessary.29 (i) A child derivative only needs to be under 21 at the time the principal parent filed for T–1 status. INA section 214(o)(4), 8 U.S.C. 1184(o)(4); New 8 CFR 214.11(k)(5)(iii). TVPRA 2003 section 4(b)(2)(B) revised INA section 214(o)(4), 8 U.S.C. 1184(o)(4), to provide that as long as a child derivative (T–3) was under 21 years of age on the date the principal T– 1 parent applied for T–1 nonimmigrant status, he or she will continue to be classified as a child and allowed entry as a derivative child. DHS implements this statutory requirement in this rule by providing that the derivative’s age at the time of classification or entry does not matter as long as the child T–3 derivative was under the age of 21 when the parent T–1 filed for T nonimmigrant status. See new 8 CFR 214.11(k)(5)(iii). DHS is codifying this statutory change without modification; notice and comment thereon are therefore unnecessary.30 (j) Exemption for the public charge ground of inadmissibility. INA section 212(d)(13)(A), 8 U.S.C. 1182(d)(13)(A); New 8 CFR 212.16(b). The INA generally prohibits DHS and immigration judges from admitting as an immigrant or granting adjustment of status to lawful permanent residence to any alien who is likely to become a public charge at any time. See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). TVPRA 2003 section 4(b)(4), however, provided that inadmissibility as a public charge does not apply to an applicant for T nonimmigrant status. See INA section 212(d)(13)(A), 8 U.S.C. 1182(d)(13)(A). DHS is amending the regulations in this interim rule and on the form to comply with the statutory requirements. See new 8 CFR 212.16(b). DHS is codifying these statutory provisions without modification; notice and comment thereon are therefore unnecessary.31 (k) Allowing extensions of status and the process to request them for LEA need, exceptional circumstances, and applying for adjustment of status. INA 29 USCIS has already implemented this change in a policy memorandum dated April 15, 2004. See Mem. from Paul Novak, Director, Vermont Service Center, USCIS, Trafficking Victims Protection Reauthorization Act of 2003 (Apr. 15, 2004). 30 USCIS has already implemented this change in a policy memorandum dated April 15, 2004. See Mem. from Paul Novak, Director, Vermont Service Center, USCIS, Trafficking Victims Protection Reauthorization Act of 2003 (Apr. 15, 2004). 31 USCIS has already implemented this change in a policy memorandum dated April 15, 2004. See Mem. from Paul Novak, Director, Vermont Service Center, USCIS, Trafficking Victims Protection Reauthorization Act of 2003 (Apr. 15, 2004). E:\FR\FM\19DER5.SGM 19DER5 sradovich on DSK3GMQ082PROD with RULES5 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations section 214(o)(7), 8 U.S.C. 1184(o)(7); New 8 CFR 214.11(l). VAWA 2005 section 821(a) requires DHS to allow extensions of T nonimmigrant status for law enforcement need. TVPRA 2008, section 201(b)(1), requires DHS to allow extensions of T nonimmigrant status in cases of exceptional circumstances, and TVPRA 2008 section 201(b)(2) requires extensions for T nonimmigrants who apply for adjustment of status. INA section 214(o)(7), 8 U.S.C. 1184(o)(7). DHS provides in this rule that USCIS may grant extensions of T–1 nonimmigrant status beyond 4 years from the date of approval in 1-year periods from the date the T–1 nonimmigrant status ends, if the presence of the victim in the United States is necessary to assist in the investigation or prosecution of such activity, an extension is warranted due to exceptional circumstances, or the T– 1 nonimmigrant has a pending application for adjustment of status to lawful permanent resident. New 8 CFR 214.11(l)(1). DHS is codifying this statutory change without substantive modification; notice and comment thereon are therefore unnecessary. This rule also establishes general procedures for an applicant to demonstrate that he or she has met the requirements for an extension of stay including prescribing an application and supporting evidence to establish eligibility. New 8 CFR 214.11(l)(2)–(7). The victim will be required to document his or her eligibility by submitting the form designated by USCIS with the prescribed fee in accordance with form instructions before the expiration of T– 1 nonimmigrant status, including: Evidence to support why USCIS should grant the extension; evidence of law enforcement need that comes directly from a law enforcement agency, including a new LEA endorsement; evidence from a law enforcement official, prosecutor, judge, or appropriate authority; or any other credible evidence. New 8 CFR 214.11(l)(2)–(5). An applicant may demonstrate exceptional circumstances by submitting an affirmative statement or any other credible evidence, including medical records, police or court records, news articles, correspondence with an embassy or consulate, and affidavits of witnesses. New 8 CFR 214.11(l)(6). USCIS will automatically extend T nonimmigrant status when a T nonimmigrant properly files an application for adjustment of status, and a separate application for extension of T nonimmigrant status is not required. New 8 CFR 214.11(l)(7). These broad procedural provisions VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 make no changes to the established legal order, other than to reiterate the public’s statutory rights, and to allow the applicants to exercise such rights. DHS has therefore determined it is not required to publish these procedures for public notice and comment. DHS nevertheless welcomes comments from the public on these changes.32 (l) Time of physical presence in the CNMI counts as time admitted as a T nonimmigrant for establishing physical presence required at adjustment of status. INA section 101(a)(15)(T)(i)(II), 8 U.S.C. 1101(a)(15)(T)(i)(II); New 8 CFR 214.11(b)(2), 245.23(a)(3)(ii). Title VIII, section 809 of VAWA 2013 provides that aliens in the CNMI are eligible for T nonimmigrant status because status in the CNMI meets the requirement for an alien to be physically present in the United States. INA section 101(a)(15)(T)(i)(II), 8 U.S.C. 1101(a)(15)(T)(i)(II) (aliens eligible for T nonimmigrant status include those who are ‘‘physically present in the . . . [CNMI] . . . on account of such trafficking’’). This means that under the statute, when T nonimmigrant status was granted for someone in the CNMI, the 3-year continuous physical presence required for adjustment of status began to toll at that time, even if he or she was not actually admitted in T nonimmigrant status. DHS provides in this rule that if the individual was granted T nonimmigrant status under 8 CFR 214.11, such individual’s physical presence in the CNMI before, on, or after November 28, 2009, including physical presence subsequent to the grant of T nonimmigrant status, is considered as equivalent to presence in the United States pursuant to an admission in T nonimmigrant status. New 8 CFR 245.23(a)(3)(ii). DHS is codifying this statutory directive without substantive modification; notice and comment thereon are therefore unnecessary. (m) The definition of sex trafficking includes patronizing or soliciting of a person for the purpose of a commercial sex act. See INA 101(a)(15)(T)(i)(I), 22 U.S.C. 7102. The Justice for Victims of Trafficking Act of 2015 (JVTA), Public Law 114–22, 129 Stat 227 (May 29, 2015), expanded the definition of sex trafficking at 22 U.S.C. 7102(10) to add ‘‘patronizing or soliciting of a person for the purpose of a commercial sex act’’ to the list of activities constituting sex trafficking. DHS believes the terms ‘‘patronizing or 32 In addition, USCIS has already implemented these statutory requirements through policy guidance. See Mem., USCIS, Extension of Status for T and U Nonimmigrants; Revisions to AFM Chapter 39.1(g)(3) and Chapter 39.2(g)(3) (AFM Update AD11–28) (Apr. 19, 2011). PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 92291 soliciting of a person for the purpose of a commercial sex act’’ are clear both in terms of USCIS adjudications and LEA certification and do not require clarification of their intent or meaning in regulatory text. Because DHS is codifying this statutory change without modification, notice and comment on those provisions are unnecessary. New 8 CFR 214.11(a), (f)(1). 2. Procedural Changes Only Binding agency rules that do not themselves alter the substantive rights or interests of parties are exempt from the APA notice and comment requirements. 5 U.S.C. 553(b)(A); Public Citizen v. Dep’t of State, 276 F.3d 634, 640 (D.C. Cir. 2002). Although the exception for procedural rules is to be construed narrowly, its purpose is clear: to provide agencies with flexibility to implement and modify administrative procedures efficiently, so long as such procedures do not intrude on the public’s substantive rights or interests. Above, DHS notes that in revising its regulation to codify intervening statutory changes, DHS has included a number of procedural provisions that provide the public with maximum flexibility to exercise statutory rights. In addition to such provisions, DHS is also making a number of procedural changes, as described below and in the succeeding sections. This rule includes at least one change to reflect changes to agency organization. The 2002 interim rule provided that any Service officer who receives a request for T nonimmigrant status shall be referred to the local Service office with responsibility for investigations relating to victims of severe forms of trafficking in persons for a consultation. Former 8 CFR 214.11(v). DHS provides in this rule that a USCIS employee who comes into contact with an alien believed to be a victim of a severe form of trafficking in persons should consult with the ICE officials responsible for victim protection, trafficking investigations and prevention, and deterrence, as appropriate. New 8 CFR 214.11(o). This change is necessary because the former INS was split into separate components responsible for the adjudication of immigration benefits and investigations and enforcement. 3. Logical Outgrowth A number of the changes made in this interim rule are logical outgrowths of the 2002 rule, and made in response to the public comments on that rule. When issuing a final or interim final rule following an interim rule, an agency must maintain ‘‘a flexible and open- E:\FR\FM\19DER5.SGM 19DER5 sradovich on DSK3GMQ082PROD with RULES5 92292 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations minded attitude’’ toward comments that support changing the original interim rule. Fed. Express Corp. v. Mineta, 373 F.3d 112, 120 (D.C. Cir. 2004) (quoting Nat’l Tour Brokers Ass’n v. United States, 591 F.2d 896, 902 (D.C. Cir. 1978), and citing Advocates for Highway & Auto Safety v. Fed. Highway Admin., 28 F.3d 1288, 1292 (D.C. Cir. 1994)). The agency should change its original rule if the data before the agency justify the change. Substantial changes may be made so long as the interim final rule provided a clear signal to the affected public as to what changes may be made, they are in character with the original scheme, and they are a logical outgrowth of the notice provided. See id.; Methodist Hosp. of Sacramento v. Shalala, 38 F.3d 1225 (D.C. Cir. 1994); BASF Wyandotte Corp. v. Costle, 598 F.2d 637 (1st Cir. 1979). The following changes made in this rule are logical outgrowths of the 2002 interim rule because they were suggested by commenters or they are clearly within the scope and in character with the original scheme of the interim rule. Notwithstanding the passage of time since the 2002 interim rule was published and intervening legislation that affects the T nonimmigrant visa program, comments provided, the factual circumstances surrounding the rule, and the administration of the T nonimmigrant visa program have not changed to an extent that would render the comments on the 2002 rule not germane or otherwise inapplicable. As described more fully in the section-by-section analysis above, in each case, the justification for the change is either as strong as or stronger than it was in 2002. Among these changes are the following: (a) No need to actually perform labor or services to qualify as victim. New 8 CFR 214.11(f)(1); TVPA sections 103(9), (10), (14); 22 U.S.C. 7102(9), (10), (14). (b) Removal of filing deadline. Former 8 CFR 214.11(d)(4). (c) Eliminating citation to United States v. Kozminski, 487 U.S. 931 (1998), and otherwise clarifying the definition of ‘‘involuntary servitude’’ for purposes of TVPA section 103(9), 22 U.S.C. 7102(9). New 8 CFR 214.11(a). (d) For evidence of victimization, accept LEA endorsements as any credible evidence. New 8 CFR 214.11(f)(1). (e) Remove the requirement to show no clear chance to depart the United States. Former 8 CFR 214.11(g)(2). (f) Provide a non-exhaustive list of factors used in the ‘‘totality of the circumstances’’ test to determine reasonableness of failure to cooperate VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 with law enforcement. New 8 CFR 214.11(h)(2). (g) Consolidate the grounds for revocation of status for violation of requirements of T status from two into one ground. New 8 CFR 214.11(m)(2)(i). (h) Provide for revocation of derivative nonimmigrant status if the family member will not apply for admission to the United States. New 8 CFR 214.11(m)(1). (i) Clarify that the standard for judging a victim’s refusal to satisfy an LEA request is not whether the victim’s refusal was reasonable, but whether the LEA request was reasonable. New 8 CFR 214.11(m)(2)(iii). (j) For evidence of compliance with an LEA request, accept any credible evidence and ascribe no special weight to the LEA endorsement. New 8 CFR 214.11(h)(3). (k) Changing the standard for when DHS will exercise its discretionary criminal waiver authority with respect to crimes that do not involve a link to the victimization; whereas the former standard allowed for discretionary waiver in ‘‘exceptional cases’’ only, the new standard allows for discretionary waiver in a broader category of cases (and in cases involving violent or dangerous crimes, only in ‘‘extraordinary circumstances’’). New 8 CFR 212.16(b)(2). (l) Revise 8 CFR 212.16(b)(3), which previously provides that USCIS would waive a ground of inadmissibility only in exceptional cases when the ground of inadmissibility would prevent or limit the ability of the applicant to adjust to permanent resident status after the conclusion of 3 years. Former 8 CFR 212.16(b)(3). DHS is replacing ‘‘exceptional cases’’ with the term ‘‘extraordinary circumstances.’’ New 8 CFR 212.16(b)(3). (m) Remove language that applicants on the wait list would maintain current means to prevent removal, to clarify that people can maintain current means or attain new means to prevent removal, in accordance with existing practice. Former 8 CFR 214.11(m)(2); new 8 CFR 214.11(j)(2). (n) Updating nondisclosure protections for information relating to an applicant or beneficiary of an application for T nonimmigrant status. 8 U.S.C. 1367; New 8 CFR 214.11(p)(1). 4. Contrary to the Public Interest Finally, public notice and comment is also not required when an agency for good cause finds that notice and public comment procedure are contrary to the public interest. The good cause exception is an important safety valve to be used where delay would do real PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 harm. N. Am. Coal Corp. v. Dir., Office of Workers’ Comp. Programs, U.S. Dep’t of Labor, 854 F.2d 386, 389 (10th Cir. 1988). To the extent DHS is filling any gaps in promulgating provisions to implement the new statutory provisions, DHS has determined that delaying the effect of this rule during the period of public comment is contrary to the public interest. Congress created the T nonimmigrant classification to protect victims of human trafficking in the United States and encourage victims to fully participate in the investigation or the prosecution of the traffickers. See TVPA, sec. 102(b). Since the 2002 interim rule, Congress enacted legislation to encourage victims of human trafficking to assist law enforcement. Public Law 108–193, 117 Stat. 2875 (Dec. 19, 2003); Public Law 109–162, 119 Stat. 2960 (Jan. 5, 2006); Public Law 109–271, 120 Stat. 750 (Aug. 12, 2006); Public Law 110–457, 122 Stat. 5044 (Dec. 23, 2008), Public Law 113– 4, 127 Stat. 54 (Mar. 7, 2013), and Public Law 114–22, 129 Stat 227 (May 29, 2015). Even if DHS has some remaining discretion in their execution, each of the specific changes made in the underlying law were intended to reduce the number of people who will be exposed to the dangers associated with human trafficking. It is contrary to the public interest to delay the changes made by this rule to provide for pre-promulgation public comment. For example, adult or minor children of the principal’s derivative family members who face a present danger of retaliation as a result of the victim’s escape from a severe form of trafficking or cooperation with law enforcement may now qualify for adjustment of status after expiration of their T nonimmigrant derivative status. Without this change taking effect immediately, family members of victims who can get nonimmigrant status would not be able to adjust status to that of a lawful permanent resident and could be required to depart the United States after their nonimmigrant status runs out. This would expose them to danger from traffickers in their home country as a result of the principal’s cooperation with law enforcement. In order to be eligible to adjust status, the family member must continue to hold status at the time of the application. 8 CFR 245.23(b)(2). If this provision is delayed, there is a risk the T–6 derivative status period will expire and the family member will not be able to adjust status, as his or her time in T–6 status will have ended. USCIS does not have another source of authority to preserve the eligibility of the T–6 status of the family member to E:\FR\FM\19DER5.SGM 19DER5 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations adjust status in lieu of implementing this provision immediately. In addition to potential harm to family members and reduced incentive for principals to participate in the T nonimmigrant visa program, delaying this change would also harm law enforcement’s ability to leverage the knowledge and experience of family members themselves. Family members coming to the United States from abroad may have knowledge of the actions of the trafficker that even the victim cooperating with the LEA may not know. DHS has seen situations where the assistance of the family members has greatly furthered the investigation. DHS has decided to avoid these harms by not delaying this change for a period of public notice and comment. B. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. As a result, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. sradovich on DSK3GMQ082PROD with RULES5 C. Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more, a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States companies to compete with foreignbased companies in domestic and export markets. D. Executive Orders 12866 and 13563 Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. DHS considers this to be a ‘‘significant regulatory action,’’ although not an VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 economically significant regulatory action, under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget (OMB) has reviewed this regulation. 1. Summary With this interim rule, DHS incorporates in its regulations several statutory provisions associated with the T nonimmigrant status that have been passed since 2002. All statutory changes made before VAWA 2013 have already been implemented by DHS, and codifying these changes in the DHS regulations will result in no additional quantitative costs or benefits to impacted stakeholders nor the Federal government in administering the T nonimmigrant status program. Ensuring that DHS regulations are consistent with applicable legislation will provide qualitative benefits. Additionally, with the enactment of VAWA 2013, the following legislative changes were made to the statute and later implemented into DHS policy: (a) Expanding the derivative categories of family members that are eligible for derivative T nonimmigrant status; and (b) providing a technical fix to clarify that physical presence in the CNMI while in T nonimmigrant status will count as continuous presence in the United States for purposes of adjustment of status. DHS will assess the impact of the statutory provisions that will be codified into regulation in this interim rule. In addition, DHS is making several discretionary changes that will: (1) Clarify DHS policy in adjudicating T nonimmigrant applications; (2) eliminate a redundant requirement to include three passport-style photographs with applications; and, (3) make the T nonimmigrant status more accessible to victims of severe forms of trafficking in persons and their eligible family members. DHS estimates the statutory and discretionary changes made in this interim rule will result in the following impacts: • A per application opportunity cost of time of $33.92 for the T–1 nonimmigrant principal alien to complete and submit the Application for Family Member of T–1 Recipient, Form I–914 Supplement A, in order to apply for children (adult or minor) of the principal’s derivative family members if the derivative’s child faces a present danger of retaliation as a result of the victim’s escape from a severe form of trafficking and/or cooperation with law enforcement.33 The cost is due 33 There is no filing fee for the Form I–914 and its supplements. The opportunity cost of time refers to the estimated cost associated with the time it PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 92293 to the VAWA 2013 statutory change that permits eligible children of the principal’s derivative relatives to be admitted under the T–6 classification. DHS has no basis to project the population of children of derivative family members that may be eligible for the new T–6 nonimmigrant classification. Like current T nonimmigrant derivative classifications, the new T–6 visa classification is not subject to a statutory cap. • An individual total cost of $89.70 for aliens who become eligible to apply for principal T–1 nonimmigrant status due to the discretionary change that removes the filing deadline for aliens trafficked before October 28, 2000. The total cost includes the opportunity cost associated with pulling together supporting evidence and filing the Application for T Nonimmigrant Status, Form I–914, and the time and travel costs associated with submitting biometrics. If the applicant includes the Declaration of Law Enforcement Office for Victim of Trafficking in Persons, Form I–914 Supplement B in the application, there is an opportunity cost of $149.70 for the law enforcement worker that completes that form. DHS has no way of predicting how many victims physically present in the United States may now be eligible for T–1 nonimmigrant status as a result of removing the filing deadline. Those that are newly eligible for T–1 nonimmigrant status as a result of removing the date restriction will still be subject to the statutory cap of 5,000 T–1 nonimmigrant visas allotted per fiscal year. • An individual total cost of $89.70 for victims trafficked abroad that will now become eligible to apply for T nonimmigrant status due to the discretionary change that expands DHS’s interpretation of the physical presence requirement. As previously described, the total cost includes both the opportunity of time cost and estimated travel cost incurred with filing Form I–914 and submitting biometrics. If the applicant includes the Declaration of Law Enforcement Office for Victim of Trafficking in Persons, Form I–914 Supplement B in the application, there is an opportunity cost of $149.70 for the law enforcement worker that completes that form. DHS is unable to project the size of this new eligible population, but note that all victims newly eligible for T–1 nonimmigrant status due to this change are still subject to the statutory cap of takes for an individual to complete and file the Form I–914 and its supplements. E:\FR\FM\19DER5.SGM 19DER5 92294 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations 5,000 T–1 nonimmigrant visas allotted per fiscal year. Based on recent filing volumes, DHS estimates total cost savings of $56,130 for T nonimmigrant applicants and their eligible family members as a result of the discretionary change that eliminates the requirement to submit three passport-style photographs with their T nonimmigrant applications. In addition, the interim rule will provide various qualitative benefits for victims of trafficking, their eligible family members, and law enforcement agencies investigating trafficking incidents. These qualitative benefits result from making the T nonimmigrant classification more accessible, reducing some burden involved in applying for this status in certain cases, and clarifying the process by which DHS adjudicates and administers the T nonimmigrant benefit. 2. Background Congress created the T nonimmigrant status in the TVPA of 2000. The TVPA provides various means to combat trafficking in persons, including tools for LEAs to effectively investigate and prosecute perpetrators of trafficking in persons. The TVPA also provides protection to victims of trafficking through immigration relief and access to federal public benefits. DHS published an interim final rule on January 31, 2002 implementing the T nonimmigrant status and the provisions put forth by the TVPA 2000.34 The 2002 interim final rule established the eligibility criteria, application process, evidentiary standards, and benefits associated with obtaining T nonimmigrant status. T nonimmigrant status is available to victims of severe forms of trafficking in persons who comply with any reasonable request for assistance from LEAs in investigating and prosecuting the perpetrators of these crimes. T nonimmigrant status provides temporary immigration benefits (nonimmigrant status and employment authorization) and a pathway to permanent resident status, provided that established criteria are met. Additionally, if a victim obtains T nonimmigrant status then certain eligible family members may also apply to obtain T nonimmigrant status.35 Table 1 provides the number of T nonimmigrant application receipts, approvals, and denials for principal victims and derivative family members for fiscal year 2005 through fiscal year 2015. Although the maximum annual number of T nonimmigrant visas that may be granted is 5,000 for T–1 principal aliens per fiscal year, this maximum number has never been reached and is not projected to be reached in the foreseeable future under current practice.36 TABLE 1—USCIS PROCESSING STATISTICS FOR FORM I–914 37 Victims (T–1) FY Receipts 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... 379 384 269 408 475 574 967 885 799 944 1,062 Family of victims (T–2,3,4,5) Approved Denied 113 212 287 243 313 447 557 674 848 613 610 From the publication of the interim final rule in 2002 through 2016, Congress passed various statutes amending the original TVPA 2000. These include: The Trafficking Victims Protection Reauthorization Act of 2003 (TVPRA 2003), the Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA 2008), and the Violence Against Women 34 See 67 FR 4784. current T nonimmigrant categories are: T– 1 (principal alien), T–2 (spouse), T–3 (child), T–4 (parent), and T–5 (unmarried sibling under 18 years of age). This interim rule creates a new T nonimmigrant category, T–6 (adult or minor child of a principal’s derivative). 36 There is no statutory cap for grants of T nonimmigrant derivative status or visas. 37 Approved and denied volumes may not sum to the receipts in a given fiscal year because the processing and final decision for T nonimmigrant sradovich on DSK3GMQ082PROD with RULES5 35 The VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 321 127 106 78 77 138 223 194 104 153 294 Receipts Approved 34 19 24 118 235 463 795 795 1,021 925 1,162 I–914 Totals Denied 73 95 257 228 273 349 722 758 975 788 694 21 45 64 40 54 105 137 117 91 105 192 Receipts 413 403 293 526 710 1,037 1,762 1,680 1,820 1,869 2,224 Approved 186 307 544 471 586 796 1,279 1,432 1,823 1,401 1,304 Denied 342 172 170 118 131 243 360 311 195 258 486 Reauthorization Act of 2013 (VAWA 2013). After the passage of each of the statutes, as noted in section I.A.1 of this preamble, USCIS issued policy and guidance memorandum to both implement the provisions of the Acts and to ensure compliance with the legal requirements of the Acts.38 This interim final rule codifies DHS policy and guidance from these statutes into the Code of Federal Regulations (CFR). The statutory changes from TVPRA 2003, TVPRA 2008, and VAWA 2005 are reflected in Table 2, below. Codifying existing USCIS policy and guidance ensures that the regulations are consistent with the applicable legislation, and that the general public has access to these policies through the CFR without locating and reviewing multiple policy memoranda. DHS provides the impact of these provisions in Table 2 assuming a pre-statutory baseline per OMB Circular A–4 requirements. status applications may overlap fiscal years. USCIS records indicate that processing an application for T nonimmigrant status requires an estimated 6 to 9 months. Data source for the table: Performance Analysis System (PAS), USCIS Office of Performance and Quality (OPQ), Data Analysis and Reporting Branch (DARB). 38 See Mem. from Paul Novak, Director, Vermont Service Center, USCIS, Trafficking Victims Protection Reauthorization Act of 2003 (Apr. 15, 2004); see also Mem., USCIS, William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008: Changes to T and U Nonimmigrant Status and Adjustment of Status Provisions; Revisions to AFM Chapters 23.5 and 39 (AFM Update AD10–38) (July 21, 2010); Mem., USCIS, Extension of Status for T and U Nonimmigrants; Revisions to AFM Chapter 39.1(g)(3) and Chapter 39.2(g)(3) (AFM Update AD11–28) (Apr. 19, 2011); Mem., USCIS, New T Nonimmigrant Derivative Category and T and U Nonimmigrant Adjustment of Status for Applicants from the Commonwealth of the Northern Mariana Islands; Revisions to Chapters 23.5 and Chapter 39.2 (AFM Update AD14–05) (Apr. 15, 2015). PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\19DER5.SGM 19DER5 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations 92295 TABLE 2—SUMMARY OF IMPACTS TO THE REGULATED POPULATION OF TVPRA 2003, TVPRA 2008 AND VAWA 2005 STATUTORY CHANGES CODIFIED BY THIS INTERIM RULE Provision Current policy Expected cost of the interim rule Expected benefit of the interim rule Expanding the definition and discussion of LEA (added by VAWA 2005). LEA includes State and local law enforcement agencies. None ............................................. Removing the requirement that eligible family members must face extreme hardship if the family member is not admitted to the United States or was removed from the United States (removed by VAWA 2005). Raising the age at which the applicant must comply with any reasonable request by an LEA for assistance in an investigation or prosecution of acts of trafficking in persons (added by TVPRA 2003). Exempting T nonimmigrant applicants from the public charge ground of inadmissibility (added by TVPRA 2003). Family members may be eligible for T nonimmigrant status without having to show extreme hardship. No additional costs, other than the opportunity cost of time to file Form I–914 Supplement A. However, DHS reiterates that this is a voluntary provision. Provides clarity and consistency in DHS practice with DHS regulations will lead to a qualitative benefit providing transparency to both the victims of trafficking and USCIS adjudicators. Provides a broader definition of an eligible family member and may increase the number of eligible family members. The provision increased the minimum age requirement from 15 years to 18 years of age. None ............................................. Provides a benefit by acknowledging the significance of an applicant’s maturity in understanding the importance of participating with an LEA. DHS may grant T nonimmigrant status to applicants even if they are likely to become a public charge. No additional costs, other than the opportunity cost of time to file Form I–914 and if necessary Supplement B. Exemptions to an applicant’s requirement, to comply with any reasonable request by an LEA (added by TVPRA 2008). Applicants are exempt from the requirement to comply with any reasonable request by an LEA in cases where the applicant is unable to comply, due to physical or psychological trauma. Extends the duration of T nonimmigrant status from 3 years to 4 years, but limits the status to 4 years unless an applicant can qualify for an extension. None ............................................. Victims who are likely to become a public charge are able to apply for T nonimmigrant status and receive the benefits associated with that status. Provides a benefit by acknowledging the significance of an applicant’s mental capacity in understanding the importance of participating with an LEA. None ............................................. Provides T nonimmigrants status for an additional year with the possibility of extension. DHS will consider victims as having met the physical presence requirement if they were allowed entry into the United States for participation in investigative or judicial processes associated with an act or perpetrator trafficking for purposes of eligibility for T nonimmigrant classification. Unmarried siblings under 18 years of age and parents of the principal applicant may now be eligible for T nonimmigrant status under the T–4 and T–5 derivative category, if the principal applicant is under age 21. A principal applicant who was under 21 years of age at the time of filing the Form I–914 can file Form I–914 Supplement A on behalf of eligible family members, including parents and unmarried siblings under age 18, even if the principal alien turns 21 years of age before the principal T–1 application is adjudicated. None ............................................. Provides a broader definition of physical presence on account of trafficking and may increase the number of eligible applicants. No additional costs, other than the opportunity cost of time to file Form I–914 Supplement A on behalf of the principal’s unmarried siblings under 18 years of age and parents. Provides a broader definition of eligible family member and may increase the number of eligible family members. None ............................................. Provides a qualitative benefit by removing an age-out restriction, allowing principal applicants to apply for parents and unmarried siblings under age 18, even if the principal applicant turns 21 years of age before the T–1 application is adjudicated. Limiting duration of T nonimmigrant status but providing extensions for LEA need, for exceptional circumstances, and for the pendency of an application for adjustment of status (VAWA 2005 and TVPRA 2008). Expanding the regulatory definition of physical presence on account of trafficking (added by TVPRA 2008). sradovich on DSK3GMQ082PROD with RULES5 Allowing principal applicants under 21 years of age to apply for derivative T nonimmigrant status for unmarried siblings under 18 years and parents as eligible derivative family members (added by TVPRA 2003). Providing age-out protection for child principal applicants to apply for eligible family members (added by TVPRA 2003). VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\19DER5.SGM 19DER5 92296 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations TABLE 2—SUMMARY OF IMPACTS TO THE REGULATED POPULATION OF TVPRA 2003, TVPRA 2008 AND VAWA 2005 STATUTORY CHANGES CODIFIED BY THIS INTERIM RULE—Continued Provision Current policy Expected cost of the interim rule Expected benefit of the interim rule Providing age-out protection for child derivatives (added by TVPRA 2003). An unmarried child of the principal who was under age 21 on the date the principal applied for T– 1 nonimmigrant status may continue to qualify as an eligible family member, even if he or she reaches age 21 while the T–1 application is pending. Allows any principal applicant, regardless of age, to apply for derivative T nonimmigrant status for parents or unmarried siblings under 18 years of age if they face a present danger of retaliation. None ............................................. Provides a qualitative benefit by removing an age-out restriction, allowing a principal applicant parent to apply for a child as a derivative beneficiary, even if the child reaches age 21 while the principal’s T–1 application is pending. If eligible, unmarried siblings under 18 years of age and parents of principal applicants may qualify for T–4 and T–5 nonimmigrant status, and obtain the immigration benefits that accompany that status. In addition, LEAs may benefit if more victims come forward to report trafficking crimes. Federal agencies must notify HHS upon apprehension or discovery of an unaccompanied child or any claim or suspicion that an individual in custody is under 18 years of age. Minors are eligible to receive federally funded benefits and services as soon as they are identified by HHS as a possible victim of trafficking. DHS may have some additional administrative costs associated with informing HHS of unaccompanied children. As a result, HHS may have some additional costs in providing benefits and services to the affected minors. Allowing principal applicants of any age to apply for derivative T nonimmigrant status for unmarried siblings under 18 years of age and parents as eligible family members if the family member faces a present danger of retaliation as a result of the principal applicant’s escape from a severe form of trafficking or cooperation with law enforcement (added by TVPRA 2008). Care and custody of unaccompanied children with the HHS (added by TVPRA 2008). 3. Changes Implemented in This Interim Rule This regulatory evaluation will provide a more in-depth analysis of the costs and benefits of the two statutory provisions added by VAWA 2013 and implemented in this interim rule. In addition, this analysis will address the impacts of several new discretionary provisions DHS is making in this interim rule. sradovich on DSK3GMQ082PROD with RULES5 a. Statutory Provisions The legislative changes to the T nonimmigrant statutes added by VAWA 2013 and addressed in this analysis include: • Allowing principal applicants of any age to apply for derivative T nonimmigrant status for children (adult or minor) of the principal’s derivative family members if the derivative’s child faces a present danger of retaliation as a result of the applicant’s escape from a severe form of trafficking or cooperation with law enforcement. See INA section 101(a)(15)(T)(ii)(III), 8 U.S.C. 1101(a)(15)(T)(ii)(III); new 8 CFR 214.11(k)(1)(iii). Harmonizing with current allowances for T derivatives, this interim rule will also permit those classified as children of derivative VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 No additional costs, other than the opportunity cost of time to file Form I–914 Supplement A, on behalf of the derivative’s unmarried siblings under 18 years of age and parents. aliens to apply for adjustment of status under INA section 245(l), 8 U.S.C 1255(1); new 8 CFR 245.23(b)(2). • Implementing a technical fix to clarify that presence in the Commonwealth of the Northern Mariana Islands (CNMI) after being granted T nonimmigrant status qualifies toward the requisite physical presence requirement for adjustment of status to lawful permanent resident. See section 705(c) of the Consolidated Natural Resources Act of 2008 (CNRA), Title VII, Public Law 110–229, 122 Stat. 754 (May 8, 2008); new 8 CFR 245.23(a)(3)(ii). VAWA 2013 expanded the eligibility of family members who may qualify for T nonimmigrant derivative status. The new statutory provision allows for the eligibility of the children (adult or minor) of the principal’s derivative family members if the derivative’s child faces a present danger of retaliation as a result of the victim’s escape from a severe form of trafficking or cooperation with law enforcement. Family members that may be eligible as a result of this new provision could, for example, include: Stepchild(ren) (the adult or minor child(ren) of the principal’s spouse); grandchild(ren) (the adult or minor child(ren) of the principal’s PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 Provides a qualitative benefit by enabling the health and wellbeing of a minor victimized by trafficking. These victims also obtain federally funded benefits and services. child); niece(s) or nephew(s) (the adult or minor child(ren) of the principal’s sibling); and/or sibling(s) (the adult or minor child of the principal’s parent). The principal must file an Application for Family Member of T–1 Recipient, Form I–914 Supplement A, on behalf of these eligible family members, in accordance with form instructions. Evidence that demonstrates a present danger of retaliation to the family member must be included with the application. New 8 CFR 214.1(a)(7) classifies the principal and eligible family members (including the new category as set forth by VAWA 2013) as: • T–1 (principal alien); • T–2 (spouse); • T–3 (child); • T–4 (parent); • T–5 (unmarried sibling under 18 years of age); or • T–6 (adult or minor child of a principal’s derivative). The final relevant provision in VAWA 2013 is a clarification that presence in the CNMI after being granted T nonimmigrant status qualifies toward the physical presence requirement for adjustment of status. T nonimmigrants may adjust to lawful permanent resident status after three years of continuous E:\FR\FM\19DER5.SGM 19DER5 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES5 physical presence in the United States. See INA section 245(l)(1)(A), 8 U.S.C. 1255(l)(1)(A). Prior to the enactment of VAWA 2013, an approved T nonimmigrant in the CNMI would not accrue time that counts toward the three year continuous physical presence requirement for adjustment of status until on or after November 28, 2009. Title VII of the CNRA extended, with limited exceptions, the U.S. immigration laws to the CNMI, effective November 28, 2009. Before the U.S. immigration laws were in effect in the CNMI, aliens in the CNMI had to travel to Guam or the United States to be admitted as a T nonimmigrant. In addition, the CNRA noted that time in the CNMI prior to the date the U.S. immigration laws became effective would not count as time in the United States. DHS data does not track aliens who were admitted as T nonimmigrants in the United States or Guam who relocated to the CNMI, and who may have been unable to adjust to lawful permanent resident because their time in the CNMI prior to November 28, 2009 did not qualify towards the three year physical presence requirement. VAWA 2013 added an exception to this provision so that time in the CNMI prior to November 28, 2009 would count as time admitted as a T nonimmigrant for establishing physical presence for purposes of adjustment of status to lawful permanent resident. See new 8 CFR 245.23(a)(3)(ii). b. Discretionary Changes In addition to the statutory provisions, DHS will make the following discretionary changes to DHS regulations governing the T nonimmigrant classification: • Specify how USCIS will exercise its waiver authority over criminal inadmissibility grounds; new 8 CFR 212.16(b)(3). • Discontinue the practice of weighing evidence as primary and secondary in favor of an ‘‘any credible evidence’’ standard; 8 CFR 214.11(f); new 8 CFR 214.11(d)(2)(ii) and (3). • Eliminate the requirement that an applicant provide three passport-style photographs; 8 CFR 214.11(d)(2)(ii); new 8 CFR 214.11(d)(4). • Remove the filing deadline for those victimized prior to October 28, 2000; 8 CFR 214.11(d)(4). • Removes the restriction in the 2002 interim rule that an eligible applicant who is placed on the waiting list shall maintain his or her current means to prevent removal (deferred action, parole, or stay of removal) and any employment authorization, subject to any limits imposed on that. See former VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 8 CFR 214.11(m)(2). DHS will clarify that applicants on the waiting-list can either maintain their ‘‘current means’’ to prevent removal or find a ‘‘new means’’ to attain relief from removal. This will provide USCIS with avenues to exercise its discretion to provide temporary assistance to applicants on a case-bycase basis, even if applicants have no current means of protection if the statutory cap is met in a given fiscal year; new 8 CFR 214.11(j)(1). • Remove the current regulatory ‘‘opportunity to depart’’ requirement for those who escaped traffickers before law enforcement became involved; former 8 CFR 214.11(g)(2). • Provide guidance on meeting the definition of ‘‘severe forms of trafficking in persons’’ in those cases where an individual has not actually performed labor or services, or a commercial sex act; new 8 CFR 214.11(f)(1). • Addresses situations where trafficking has occurred abroad, but the victim can potentially meet the physical presence eligibility requirement; new 8 CFR 214.11(g)(3). • Update DHS regulations to reflect the creation of DHS, and to implement current standards of regulatory organization, plain language, and USCIS efforts to transform its customer service practices. 4. Benefits a. Benefits of Statutory Provisions A qualitative benefit is realized by incorporating all the statutory provisions that are current USCIS practice in DHS regulations. The addition of these provisions to DHS regulations is necessary to ensure: That DHS regulations are consistent with applicable legislation; that no ambiguity exists between current DHS practices and the CFR; and that the general public is able to access DHS practices via the CFR without having to consult multiple policy memoranda. The VAWA 2013 provision expanding the derivative eligibility to the children (adult or minor) of the principal’s derivative family members provides an additional qualitative benefit for trafficking victims and their eligible family members. Specifically, incorporating this statutory change in DHS regulations upholds the United States Federal Government’s commitment to promoting family unity in its immigration laws. Additionally, this provision may provide a qualitative benefit to law enforcement agencies that are investigating trafficking crimes, as it provides them with another method to incentivize victims to report these crimes who otherwise may not have PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 92297 because they feared retaliation against their family members. In the event the adult or minor children of the principal’s derivative family members face a present danger of retaliation as a result of the victim’s escape from a severe form of trafficking or cooperation with law enforcement, they may now qualify for T nonimmigrant derivative status. Prior to this expansion of derivative eligibility these family members may have been exposed to danger as a result of the victims coming forward to report the trafficking incidents. This may have acted as a disincentive for victims to report these crimes and to seek assistance. Expanding derivative eligibility to these family members may induce trafficking victims to seek LEA assistance and to cooperate with investigations of trafficking crimes. As a result, trafficking victims, their eligible family members, and law enforcement agencies investigating trafficking abuses all benefit from this statutory expansion. The final VAWA 2013 provision provides a benefit by addressing a gap in immigration law as it pertains to the CNMI to clarify that presence as a T nonimmigrant in the CNMI before or after November 28, 2009 qualifies toward the three-year physical presence requirement for adjustment of status to lawful permanent residence. Prior to this technical fix, the CNRA provision stated that time in the CNMI before November 28, 2009 did not count as time in the United States. This may have been a barrier to T nonimmigrants residing in the CNMI who wished to adjust status but whose time in the CNMI prior to this date did not qualify toward the three year physical presence requirement. With the enactment of VAWA 2013, time spent as a T nonimmigrant in the CNMI before November 28, 2009 counts toward the physical presence requirement for adjustment of status to lawful permanent residence. DHS is unable to determine how many T nonimmigrants may have been unable to adjust to permanent residence status as a result of the prior CNRA provision. Those in the CNMI had to travel to Guam or other parts of the United States to be admitted as a T nonimmigrant prior to the replacement of the immigration laws of the CNMI with those of the United States under the CNRA. DHS data does not track individuals who were admitted as T nonimmigrants in the United States (including Guam) who relocated to the CNMI, and who may have been unable to adjust to lawful permanent resident because their time in the CNMI prior to November 28, 2009 did not qualify E:\FR\FM\19DER5.SGM 19DER5 92298 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES5 towards the three-year physical presence requirement. DHS believes this to have been a rare occurrence, however, and therefore anticipates that any additional population adjusting status solely as a result of this change will be small, if any. b. Benefits of Discretionary Changes DHS will eliminate the current requirement that three passport-style photographs be submitted with T nonimmigrant applications. This is a requirement for both principal alien victims and their eligible family members. Enhancements in USCIS operations as it pertains to collecting biometrics make the requirement to submit these photographs redundant. T nonimmigrant applicants have their photographs taken when they visit an application support center (ASC) to submit biometrics. The photographs taken at the ASC replaces the current requirement to submit three passportstyle photographs with T nonimmigrant applications. DHS, in our ongoing efforts to review our regulations and reduce unnecessary and/or redundant burdens, is eliminating the requirement to submit these photographs, resulting in quantitative savings for applicants. According to the findings of Department of State (DOS), a passport-style photograph has an average cost of $10.00.39 Therefore, each T nonimmigrant status applicant would save an estimated $30.00, the cost of three photographs. This $30.00 savings would benefit all future T nonimmigrant principal and derivative applicants. As noted throughout this analysis, DHS is unable to reasonably project how future filing volumes may be affected by the statutory and discretionary changes implemented by this interim rule. In an effort, however, to calculate total cost savings to applicants by no longer having to submit three photographs DHS averaged total annual receipts for Fiscal Years 2011 through 2015. (Refer to Table 1 in this analysis to view all T nonimmigrant receipts since Fiscal Year 2005.) DHS assumes that average filing volumes for Fiscal Years 11 through 15 offer a reasonable expectation of what future receipts would be under current DHS process. DHS does not have the information to forecast populations that may result from the changes made in this interim rule. Using the average of 39 DOS estimates an average cost of $10 per passport photo in the PRA Supporting Statement found under OMB control number 1450–0004. A copy of the Supporting Statement is found on Reginfo.gov at: https://www.reginfo.gov/public/do/ PRAViewDocument?ref_nbr=201102-1405-001 (see question #13 of the Supporting Statement). VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 Fiscal Years 11 through 15 receipts, DHS estimates expects that annual receipts for T nonimmigrant status applications (both principal and derivative applicants) would be approximately 1,871.40 Again, the assumed volume of 1,871 is calculated without considering any unforeseeable increases in receipts that may result from new population groups that will be eligible for T nonimmigrant status in this interim rule. Therefore, at a minimum, DHS expects the cost savings from eliminating the photograph requirement to be $56,130.41 In addition to this quantitative benefit, the remaining discretionary changes result in qualitative benefits for victims of trafficking and their eligible family members, and also for law enforcement agencies in their efforts to combat and investigate trafficking crimes. The provision relating to the discretion of USCIS to administer its waiver authority over criminal inadmissibility grounds provides benefits by clarifying USCIS policy as it relates to USCIS waiver authority and the granting of deferred action. Additionally, removing the regulatory restrictions on methods available to protect applicants on the waiting list from removal will allow DHS the discretion to grant deferred action to applicants on the waiting list who currently have no current means to prevent removal. Additionally, amending DHS regulations to clarify that a trafficked individual may be eligible for T nonimmigrant status even though he or she did not perform labor or services, or a commercial sex act will also provide benefits for the impacted population. This amendatory language is meant to clarify when an individual can satisfy the definition of being a victim of ‘‘severe forms of trafficking in persons,’’ even if the victim escaped his or her traffickers prior to performing the labor, services, or commercial sex acts intended. This clarification will be a qualitative benefit to applicants who, prior to the clarification, may have experienced confusion as to whether they are eligible for T nonimmigrant status if they have not performed the services mentioned. Likewise, the clarification will provide clear guidance to DHS adjudicators in their evaluations of applications in which this might occur. DHS is also eliminating the filing deadline for those who were victimized prior to October 28, 2000. See 8 CFR 214.11(d)(4). According to current DHS 40 Average of FY 11 through 15 total receipts. 1,871 × $30.00 = $56,130. 41 Calculation: PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 regulations, victims of a severe form of trafficking in persons whose victimization occurred prior to this deadline must have filed a completed application for T nonimmigrant status within one year of March 4, 2002, the effective date of the 2002 interim final rule. The deadline was originally put in place because of uncertainty of how many victims may come forward to apply for T nonimmigrant benefits. The reasoning at the time was that there could be a large influx of applicants for T nonimmigrant benefits, which could have adversely impacted timely administration and adjudication of the program if no deadline were in place. This concern never materialized, however, and annual T nonimmigrant application receipts have remained well under the cap of 5,000 T–1 principal aliens. Therefore, DHS will remove the filing deadline for those victims that were trafficked before October 28, 2000. This will make the T nonimmigrant status accessible to those victimized prior to the enactment of TVPA that were unable to apply for T nonimmigrant status prior to the filing deadline. DHS is unable to estimate how many individuals may apply once the deadline is removed, although it is believed the receipts would be small given the amount of time that has passed. The discretionary provision eliminating the requirement that victims of trafficking must show they had no clear opportunity to depart from the United States will provide another benefit to potential applicants. Currently, victims of trafficking who escaped their traffickers prior to LEA involvement in the matter must submit evidence showing they had no clear chance to leave the United States once they became free of their traffickers. Such evidence may include, but is not limited to, demonstrating the victim had limited ability to depart due to circumstances attributable to the trafficking, such as trauma, injury, lack of funds, or seizure of travel documents by the traffickers. See 8 CFR 214.11(g)(2). DHS has determined that this requirement places an unnecessary additional burden on victims of trafficking who wish to apply for T nonimmigrant status. Removing this evidentiary requirement will provide time and cost savings to the applicant by not having to procure and provide such evidence to USCIS; additionally, USCIS may realize some time savings by not having to review these documents during case adjudication. DHS did not have the necessary data to estimate the monetary value of such savings. E:\FR\FM\19DER5.SGM 19DER5 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES5 DHS also will discontinue the practice of labeling evidence as primary and secondary, in favor of requiring ‘‘any credible evidence’’ the applicant may possess to show that they were a victim of a severe form of trafficking and have complied with any reasonable request to assist an LEA. Currently, DHS considers only the submission of the Declaration of Law Enforcement Officer, Form I–914 Supplement B, to be primary evidence. All other evidence the applicant may submit is labeled as secondary evidence. This distinction has proven to be confusing for both applicants and law enforcement officials, because the Supplement B is not a required form to be submitted by applicants. Furthermore, LEAs have expressed concern that because the Supplement B is the only evidence considered by DHS to be ‘‘primary evidence,’’ the mere fact that an LEA completes the form may be the primary ground relied on by DHS in granting status to an applicant seeking T nonimmigrant benefits. As a result of this misinterpretation, some LEAs have been reluctant to complete a Supplement B on behalf of applicants. DHS believes removing the ‘‘primary evidence’’ and ‘‘secondary evidence’’ labels currently in place will reduce confusion for applicants and alleviate the concerns of LEAs. LEAs may then be more likely to complete the Supplement B for an applicant, which, although it would no longer have the label of ‘‘primary evidence,’’ would still contribute to the alien’s overall application for T nonimmigrant benefits. In turn, the victim may be more willing to cooperate if he or she feels more confident the LEA will recognize this assistance. Lastly, DHS will amend the regulations to provide guidance on how victims may still qualify for T nonimmigrant status in instances when the trafficking occurred abroad. Though DHS anticipates there will be limited circumstances when trafficking occurred abroad that could still lead to T nonimmigrant eligibility, it has identified some instances when this might occur and discusses them in this interim rule. This expanded interpretation of the physical presence requirement will be a benefit to any additional aliens and their eligible family members who may now become eligible for T nonimmigrant status. In addition, LEAs will benefit from having access to additional eligible populations that can provide key information and assistance to those investigating trafficking crimes. DHS is unable to project how many victims may become eligible for T nonimmigrant status as a result of this change. 42 Currently, the PRA time burden for Application for T–1 Nonimmigrant Status, Form I–914 and Application for Immediate Family Member of T–1 Recipient, Form I–914 Supplement A are not reported separately. The current time burden is reported in aggregate as 3 hours 15 min. The information collection instrument is being revised slightly, and as part of those revisions, the time burden for each form, Form I–914 (2.25 hours) and Form I–914A (1 hour), will be reported separately. The information collection request will be reviewed by OMB concurrent with the interim final rule. 43 U.S. Department of Labor, Bureau of Labor Statistics. May 2015 National Occupational Employment and Wage Estimates, Mean Hourly Wage (all occupations), available at: https:// www.bls.gov/oes/current/oes_nat.htm#00-0000. 44 Calculation: $23.23 × 1.46 = $33.92. Bureau of Labor Statistics, Economic News Release, Table 1. VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 5. Costs a. Costs of Statutory Provisions The majority of the changes to DHS regulations made to incorporate statutory provisions result in no additional costs to victims of severe forms of trafficking or their eligible family members. Since the application volume for the T nonimmigrant program has never reached capacity, we expect that any additional costs to DHS in its administration of the T nonimmigrant program will be minimal. The provisions created as a result of congressional action in the years following the 2002 interim final rule and prior to the VAWA 2013 are current DHS policy and therefore no changes or amendments to current practice are necessary as a result of codifying them in DHS regulations. Likewise, the provision in VAWA 2013 clarifying that presence in the CNMI qualifies toward the requisite physical presence requirement for adjustment of status will result in no additional costs. The VAWA 2013 provision expanding T nonimmigrant derivative status eligibility to the children (adult or minor) of the principal’s derivative family members is currently reflected in DHS policy and includes certain associated costs. In order for family members to be eligible for the new T–6 derivative categories, the T–1 principal must file an Application for Family Member of T–1 Recipient, Form I–914 Supplement A, on behalf of each of these family members, in accordance with form instructions. There is no fee to file the Form I–914 Supplement A; therefore, the associated cost to the T–1 principal is the opportunity cost of time to file the form. DHS uses the time PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 92299 burden of one hour for Form I–914 Supplement A to calculate the opportunity cost associated with this provision.42 Consistent with other DHS rulemakings, we use wage rates as the mechanism to calculate opportunity or time valuation costs associated with submitting required information to USCIS in order to apply for immigration benefits. Since T–1 principals must file one Application for Immediate Family Member of T–1 Recipient, Form 914 Supplement A, on behalf of each of their eligible family members and are authorized to work when they are granted T nonimmigrant status, DHS employs the mean hourly wage rate of all occupations in the United States, $23.23.43 The mean hourly wage rate is multiplied by 1.46 to account for the full cost of employee benefits such as paid leave, insurance, and retirement, bringing the total burdened wage rate to $33.92.44 Therefore, the T–1 principal is subject to a per application opportunity cost of $33.92 to complete and file an Application for Immediate Family Member of T–1 Recipient, Form I–914 Supplement A with USCIS.45 The opportunity cost of time for T–1 principals to file the Application for Family Member of a T–1 Recipient, Form I–914 Supplement A, as presented here are individual per application costs only; applying these costs to an entire population is not possible at this time. DHS has no way to estimate the additional population of eligible family members who may qualify for status under the new T–6 nonimmigrant derivative classification. Current statutory authority offers no comparable immigration benefits to family members of nonimmigrant aliens outside of those considered immediate relatives, such as spouses, children, parents, and in some cases siblings. Making benefits eligible to the children (adult or minor) of derivatives will be a new practice for DHS; therefore, an informed estimation of this population is not possible. Table 3 provides a summary of the costs and benefits to the regulated population that are associated with the statutory changes as put forth by VAWA 2013. Employer costs per hour worked for employee compensation and costs as a percent of total compensation: Civilian workers, by major occupational and industry group, March 2016, available at: https://www.bls.gov/news.release/ ecec.t01.htm. 45 ($33.92 hourly burdened wage rate) × (1 hour estimated time burden) = $33.92. E:\FR\FM\19DER5.SGM 19DER5 92300 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations TABLE 3—SUMMARY OF IMPACTS TO THE REGULATED POPULATION OF VAWA 2013 STATUTORY CHANGES CODIFIED BY THIS INTERIM RULE Provision Current policy Expected cost of the interim rule Expected benefit of the interim rule Allowing principals to apply for derivative T nonimmigrant status for children of the principal’s derivative family members if the derivative’s child faces a present danger of retaliation as a result of the victim’s escape from a severe form of trafficking or cooperation with law enforcement. Implementing a clarification that presence in the Commonwealth of the Northern Mariana Islands (CNMI) after being granted T nonimmigrant status prior to November 28, 2009 qualifies toward the requisite physical presence requirement for adjustment of status. Adult or minor children of the principal’s derivative family members may now be eligible for T nonimmigrant status under the new T–6 derivative category. T–1 principals will face an opportunity cost of $33.92 to file Form I–914 Supplement A on behalf of the derivative’s adult or minor child. Time in the CNMI as a T nonimmigrant, whether before, on or after November 28, 2009, now counts as physical presence for purposes of establishing eligibility for adjustment of status as a T nonimmigrant to lawful permanent residence. None ............................................. If eligible, the children of the principal’s derivative relatives may qualify for T–6 nonimmigrant status, and obtain the immigration benefits that accompany that status. In addition, LEAs may benefit if more victims come forward to report trafficking crimes. Provides a benefit in that it addresses a gap in immigration law as it pertains to the CNMI and removes a provision that may have been a bar to adjustment of status to lawful permanent resident. sradovich on DSK3GMQ082PROD with RULES5 b. Costs of Discretionary Changes Most of the discretionary changes included in the interim rule will require no additional costs to either victims of severe forms of trafficking or to DHS in its administration of T nonimmigrant status benefits. The two provisions related to USCIS’s waiver authority over criminal inadmissibility grounds and its discretion to grant deferred action to those victims placed on the waiting list simply clarify current USCIS practice and do not result in changes to the process of handling and adjudicating T nonimmigrant applications. Likewise, the guidance provided in the interim rule for meeting the definition of ‘‘severe forms of trafficking in persons’’ where an individual has not performed labor or service, or a commercial sex act is simply a clarification of current DHS interpretation of the definition and will not result in additional costs or changes to the process of handling and the adjudication of T nonimmigrant applications. The remaining discretionary changes that result in no additional costs include: • No longer weighing evidence as either primary or secondary in favor of an ‘‘any credible evidence’’ standard; • Eliminating the requirement that applicants provide three passport-style photographs as part of his or her application; • Discontinuing the current practice of requiring victims who escaped from traffickers prior to LEA involvement to submit evidence to show that he or she had no clear opportunity to depart from the United States; and • Providing guidance on physical presence as it relates to eligibility for T VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 nonimmigrant status when the trafficking has occurred abroad. Though these provisions do amend current DHS practice, they place no further burden or cost on victims of trafficking who wish to apply for T nonimmigrant status. Furthermore, DHS does not expect these changes to have an impact on staffing plans or adjudication timeframes in processing T nonimmigrant applications. The change to remove the filing deadline for individuals victimized prior to October 28, 2000 will result in costs for any additional victims that may now be eligible to apply for principal T–1 nonimmigrant status. In addition, if the victim wishes to provide evidence in their application that they are cooperating with law enforcement, there will be an opportunity cost for the law enforcement officer completing the Declaration of Law Enforcement Office for Victim of Trafficking in Persons, Form I–914 Supplement B. Since there are no fees associated with either the T nonimmigrant application or providing required biometrics, the newly eligible population would be responsible only for the opportunity cost of time to file the Form I–914 and to submit the required biometrics. DHS estimates the time burden to file the Form I–914 to be 2.25 hours. Generally, trafficked individuals applying for T–1 nonimmigrant status are not eligible to work in the United States until after USCIS has made a decision on their application (either a grant of bona fide determination or an approval). There could, however, be instances where a victim may have received other forms of immigration PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 relief which allowed them to legally work, although DHS does not collect the data necessary to estimate the number of victims that may fall into this category.46 Consistent with other DHS rulemakings, we use wage rates as a mechanism to estimate the opportunity or time valuation costs for these aliens to file the Application for T Nonimmigrant Status, Form I–914 and to submit the required biometrics. Assuming that most individuals applying for T–1 nonimmigrant status on the basis of removing the October 28, 2000 filing deadline are not yet authorized to work in the United States, DHS will use the Federal minimum wage as a proxy to estimate the opportunity cost understanding these individuals are not currently eligible to participate in the workforce. The Federal minimum wage is currently $7.25 per hour.47 To anticipate the full opportunity costs faced by the applicants, the minimum hourly wage rate is multiplied by 1.46 to account for the full cost of employee benefits such as paid leave, insurance, and retirement, which equals $10.59 per hour.48 DHS 46 For example, some in this population could have received a grant of continued presence from DHS, U.S. Immigrations and Customs Enforcement, which would permit them work authorization. See 22 U.S.C. 7105(c)(3)(A)(i). 47 U.S. Department of Labor, Wage and Hour Division. Minimum Wage effective July 24, 2009, available at: https://www.dol.gov/dol/topic/wages/ minimumwage.htm. 48 U.S. Department of Labor, Bureau of Labor Statistics, Economic News Release, Table 1. Employer costs per hour worked for employee compensation and costs as a percent of total compensation: Civilian workers, by major occupational and industry group, May 2016, available at https://www.bls.gov/news.release/ ecec.t01. E:\FR\FM\19DER5.SGM 19DER5 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations multiplied the fully burdened wage rate of $10.59 per hour by the 2.25 hours estimated to file the Form I–914 to get an opportunity cost of $23.83 to file the Application for T Nonimmigrant Status.49 Applicants seeking T–1 nonimmigrant status will be required to travel to an ASC to submit biometrics. In past rulemaking, DHS estimated that the average round-trip distance to an ASC is 50 miles, and that the average travel time for the trip is 2.5 hours.50 DHS also estimates that applicants will wait an average of 1.17 hours for service, bringing the total time to submit biometrics to 3.67 hours.51 52 In addition, the cost of travel includes a mileage charge based on the estimated 50 mile round trip at the 2016 General Services Administration rate of $0.54 per mile, which equals $27.00 for each applicant.53 Using an opportunity cost of time of $10.59 per hour and the 3.67 hours estimated time for travel and service and the mileage charge of $27.00, DHS estimates the cost per T–1 principal applicant to be $65.87 for travel to and service at the ASC.54 Therefore, the full cost for a T nonimmigrant applicant victimized prior to October 28, 2000, including the total costs of filing the Form I–914 and submitting biometrics, is $89.70.55 Lastly, there is an opportunity cost for law enforcement to complete Declaration of Law Enforcement Officer for Victim of Trafficking in Persons, Form I–914 Supplement B if the applicant decides to include that evidence in their application. DHS estimates the time burden to complete Declaration of Law Enforcement Officer for Victim of Trafficking in Persons, Form I–914 Supplement B is 3.75 hours. In 2015, the mean hourly wage rate for law enforcement workers was $27.34, which when accounting for non-salaried benefits equals $39.92.56 Using this total hourly wage rate, DHS estimates the opportunity costs for law enforcement to complete the Declaration of Law Enforcement Officer for Victim of Trafficking in Persons, Form I–914 Supplement B is $149.70.57 DHS is unable to estimate how many individuals victimized prior to October 28, 2000 may apply once the filing deadline is removed. Due to the passage of time, we anticipate filing volumes for those that were victimized prior to October 28, 2000 to be minimal. 92301 Additionally, individuals who may now become eligible for T nonimmigrant status as a result of the expanded interpretation of the physical presence requirement will face the same opportunity cost of $89.70 to file the Form I–914 and submit the required biometrics. Likewise, if the applicant decides to include evidence of law enforcement cooperation, the law enforcement official completing Declaration of Law Enforcement Officer for Victim of Trafficking in Persons, Form I–914 Supplement B will face an opportunity cost of $149.70. DHS is unable to estimate how many individuals may become eligible as a result of this provision but anticipates there will be a limited number of cases where the trafficking occurred outside of the United States and the alien will now meet the physical presence requirement. Table 4 provides a summary of the costs and benefits associated with each discretionary change made in this interim rule. The discretionary change that updates terminology and organizational structure in DHS regulations is not included in the table as it results in no additional impacts. TABLE 4—SUMMARY OF IMPACTS TO THE REGULATED POPULATION OF THE DISCRETIONARY CHANGES IMPLEMENTED IN THIS INTERIM RULE Provision Changes to current policy resulting from the interim rule Expected cost of the interim rule Expected benefit of the interim rule Specifies how USCIS exercises its waiver authority over criminal inadmissibility grounds. None. This will simply be a clarification of current DHS practice and align T nonimmigrant regulations with those currently governing the U nonimmigrant status. Evidence will no longer be labeled primary or secondary. DHS will accept any credible evidence of compliance with any reasonable request to assist LEAs. None ............................................. Providing clarity and consistency in DHS practice with DHS regulations will lead to a qualitative benefit to both the victims of trafficking and USCIS staff adjudicating these cases. Removes confusion associated with labeling evidence as primary and secondary, and will result in qualitative benefits for both the victims of trafficking and LEAs. The applicant will no longer be responsible for submitting three passport-style photographs with his/her application. DHS will continue to take photographs at Application Support Centers at the time of fingerprint collection. None ............................................. sradovich on DSK3GMQ082PROD with RULES5 Discontinues weighing evidence as primary and secondary in favor of a standard that reviews any credible evidence in making the determination to approve or disapprove an application for T nonimmigrant status. Eliminates the requirement that an applicant provide three passportstyle photographs. per hour) × (2.25 hours) = $23.83. e.g., Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 FR 535 (Jan. 3, 2013) (DHS final rule). 51 See ‘‘Paperwork Reduction Act (PRA) Supporting Statement for Application for Employment Authorization, Form I–765 (OMB control number 1615–0040), Question 13. The Supporting Statement can be found on Reginfo.gov 49 ($10.59 50 See, VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 None ............................................. at https://www.reginfo.gov/public/do/ PRAViewICR?ref_nbr=201502-1615-004.’’ 52 Calculation: 2.5 hours + 1.17 average of service wait time = 3.67 total time to submit biometrics. 53 The General Services Administration mileage rate of $0.54, effective January 1, 2016, available at: https://www.gsa.gov/portal/content/100715. 54 ($10.46 per hour × 3.67 hours) + ($0.54 per mile × 50 miles) = $65.87. 55 $23.83 + $65.87 = $89.70. PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 Results in total quantitative savings of $56,130 for principal applicants and their derivatives. 56 U.S. Department of Labor, Bureau of Labor Statistics. May 2015 National Occupational Employment and Wage Estimates, Law Enforcement Workers (occupational group code 33–3000), https:// www.bls.gov/oes/current/oes_nat.htm#33-0000. The calculation to load the wage is: $27.34 × 1.46 = $39.92 (rounded). 57 ($39.92 hourly burdened wage rate) × (3.75 hours in estimated time burden) = $149.70. E:\FR\FM\19DER5.SGM 19DER5 92302 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations TABLE 4—SUMMARY OF IMPACTS TO THE REGULATED POPULATION OF THE DISCRETIONARY CHANGES IMPLEMENTED IN THIS INTERIM RULE—Continued Provision Changes to current policy resulting from the interim rule Expected cost of the interim rule Expected benefit of the interim rule Removes the filing deadline for applicants victimized prior to October 28, 2000. Those victimized prior to October 28, 2000 will be able to apply for T nonimmigrant status. Permits USCIS to take a discretionary action to protect applicants from removal who are placed on the waiting list if the statutory cap is met in a given fiscal year. Removes the current regulatory ‘‘opportunity to depart’’ requirement for those victims who escaped traffickers before law enforcement became involved. None. This will simply be a clarification of current DHS practice and align T nonimmigrant regulations with those currently governing the U nonimmigrant status. DHS will no longer require additional evidence to show the victim had no opportunity to depart the United States after he/she escaped traffickers prior to LEA involvement. None. This will clarify current DHS practice as regards the definition of ‘‘severe forms of trafficking in persons’’. Any new eligible applicants will be responsible for the full cost of $89.70 for applying and submitting fingerprints. If included in the application, the cost for law enforcement to complete Form I–914 Supplement B is $149.70. None ............................................. Those victimized prior to October 28, 2000, and their eligible derivative family members, will be able to apply for T nonimmigrant status and receive the immigration benefits associated with that status. Providing clarity and consistency in DHS practice will lead to a qualitative benefit to both the victims of trafficking and DHS staff adjudicating these cases. None ............................................. Provides a qualitative benefit by removing an additional evidentiary burden for those victims of trafficking who escaped prior to LEA involvement. None ............................................. Providing clarity and consistency in DHS practice will lead to a qualitative benefit to both the victims of trafficking and DHS staff adjudicating these cases. Any new eligible applicants will be responsible for the full cost of $89.70 for applying and submitting fingerprints. If included in the application, the cost for law enforcement to complete Form I–914 Supplement B is $149.70. Individuals victimized abroad, and their eligible derivative family members, can apply for T nonimmigrant status. These victims will also help in investigations of trafficking crimes, which will benefit LEAs. Provides guidance on meeting the definition of ‘‘severe forms of trafficking in persons’’ where an individual has not performed labor or services, or a commercial sex act. Addresses situations where trafficking has occurred abroad and whether the applicant can potentially meet the physical presence requirement. DHS may consider victims as having met the physical presence requirement for certain instances when the trafficking occurred outside the United States. sradovich on DSK3GMQ082PROD with RULES5 c. Costs to the Federal Government If the changes implemented in this interim rule increase the volume of applications for T nonimmigrant status, USCIS could face increased costs to administer the T nonimmigrant status program. The INA provides for the collection of fees at a level that will ensure recovery of the full costs of providing adjudication and naturalization services, including services provided without charge to asylum applicants and certain other immigrant applicants. INA section 286(m), 8 U.S.C. 1356(m). Recognizing the economic needs and hardships of this vulnerable population, as a matter of policy USCIS exempted the fee for applying for T nonimmigrant status and for submitting biometrics. Likewise, the fees for any additional applications needed for T nonimmigrants, from the time the alien victim applies for initial T nonimmigrant status (e.g. for submitting waivers of inadmissibility requests) through applications to adjust status, are eligible for fee waiver requests. Accordingly, the costs incurred by USCIS to process T nonimmigrant applications and biometrics are an insignificant portion VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 of the total USCIS adjudication costs compared to other fee paying immigrant benefit requests. These costs are insignificant due to the small number of receipts of Form I–914. In FY 2015, USCIS received 2,224 Form I–914 applications (see Table 1) out of a total of 7,650,475 applications received agency wide, making Form I–914 receipts less than 0.03% of total agencywide receipts.58 Therefore, to the extent that the changes implemented in this interim rule may result in additional applications, or even reach the statutory cap of 5,000 applications, in the short term we expect those costs to be insignificant and absorbed by the current fee structure for immigration benefits. In the long term, USCIS will continue to monitor the costs of administering the T nonimmigrant program as a normal part of its biennial fee review. The biennial fee review determines if fees for immigration 58 Source: USCIS, Number of Service-wide Forms by Fiscal Year To-Date, Quarter, and Form Status 2015 available at https://www.uscis.gov/sites/ default/files/USCIS/Resources/ Reports%20and%20Studies/ Immigration%20Forms%20Data/ All%20Form%20Types/all_forms_ performancedata_fy2015_qtr4.pdf. PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 benefits are sufficient in light resource needs and filing trends. As previously mentioned, beneficiaries of T nonimmigrant status are also eligible for federal public benefits from the Department of Health and Human Services, so the changes implemented in this interim rule could result in increased transfer payments if there are increases in the number of persons granted T nonimmigrant status. E. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), requires an agency to prepare and make available to the public a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). A regulatory flexibility analysis is not required when a rule is exempt from notice and comment rulemaking. DHS has determined that this rule is exempt from notice and comment rulemaking. Therefore, a regulatory flexibility analysis is not required for this rule. Nonetheless, USCIS examined the E:\FR\FM\19DER5.SGM 19DER5 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations impact of this rule on small entities under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601(6). The individual victims of trafficking and their derivative family members to whom this rule applies are not small entities as that term is defined in 5 U.S.C. 601(6). F. Executive Order 13132 This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132 (Federalism), it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. G. Executive Order 12988 This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Civil Justice Reform). sradovich on DSK3GMQ082PROD with RULES5 H. Family Assessment This regulation may affect family well-being as that term is defined in section 654 of the Treasury General Appropriations Act, 1999, Public Law 105–277, Div. A. This action has been assessed in accordance with the criteria specified by section 654(c)(1). This regulation will enhance family wellbeing by encouraging vulnerable individuals who have been victims of severe forms of trafficking in persons to report the criminal activity and by providing critical assistance and benefits. Additionally, this regulation allows certain family members to obtain T nonimmigrant status once the principal applicant has received status. I. Paperwork Reduction Act Under the PRA of 1995, 44 U.S.C. 3501 et seq., all Departments are required to submit to OMB, for review and approval, any reporting requirements inherent in a rule. DHS is amending application requirements and procedures for aliens to receive T nonimmigrant status, defined in section 101(a)(15)(T) of the INA, 8 U.S.C. 1101(a)(15)(T). DHS has revised the Application for T Nonimmigrant Status, Form I–914; the Application for Family Member of T–1 Recipient, Form I–914 Supplement A; and the Declaration of Law Enforcement Officer for Victim of Trafficking in Persons, Form I–914 Supplement B, and the associated form instructions to conform with the new regulations (OMB Control Number 1615–0099). These forms are considered VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 information collections and are covered under the PRA. USCIS previously requested public comments on the revised forms and form instructions for 60 days. 60-day notice, Agency Information Collection Activities: Application for T Nonimmigrant Status, Form I–914, Application for Immediate Family Member of T–1 Recipient, Supplement A, Declaration of Law Enforcement Officer for Victim of Trafficking in Persons, Supplement B; Revision of a Currently Approved Collection, 79 FR 6209–10 (Feb. 3, 2014). One comment was received that expressed general opposition to the T nonimmigrant program but provided no input on the information collection instruments. No changes were made in response to the comment. The revised information collection has been submitted for approval to the Office of Management and Budget (OMB) for review and approval under procedures covered under the PRA. USCIS is requesting comments on this information collection for 30 days until January 18, 2017. When submitting comments on the information collection, your comments should address one or more of the following four points. (1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency’s estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. Overview of information collection: (a) Type of information collection: Revised information collection. (b) Abstract: This information collection will be used by individuals (aliens who are victims of severe forms of trafficking in persons and certain family members, as appropriate) to file a request for USCIS approval for T nonimmigrant status. (c) Title of Form/Collection: Application for T Nonimmigrant Status, Application for Family Member of T–1 Recipient, and Declaration of Law PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 92303 Enforcement Officer for Victim of Trafficking in Persons. (d) Agency form number, if any, and the applicable component of the Department of Homeland Security sponsoring the collection: Form I–914, Form I–914 Supplement A, and Form I– 914 Supplement B; USCIS. (e) Affected public who will be asked or required to respond: Individuals and households. (f) An estimate of the total number of annual respondents: 1,871 respondents. (g) Hours per response: Application for T Nonimmigrant Status, Form I–914 at 2.25 hours per response; Application for Family Member of T–1 Recipient, Form I–914 Supplement A at 1 hour per response; Declaration of Law Enforcement Officer for Victim of Trafficking in Persons, Form I–914 Supplement B at 3.75 hours per response; and biometric services processing at 1.17 hours per response. (h) Total annual reporting burden: 9,921 annual burden hours. Comments should refer to the proposal by name and/or the OMB Control Number and should be sent to DHS using one of the methods provided under the ADDRESSES and I. Public Participation sections of this interim rule. Comments should also be submitted to USCIS Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202–395–5806. Email: OIRA_Submission@omb.eop.gov. List of Subjects 8 CFR Part 212 Administrative practice and procedure, Aliens, Immigration, Passports and visas, Reporting and recordkeeping requirements. 8 CFR Part 214 Administrative practice and procedure, Aliens, Cultural exchange programs, Employment, Foreign officials, Health professions, Reporting and recordkeeping requirements, Students. 8 CFR Part 245 Aliens, Immigration, Reporting and recordkeeping requirements. 8 CFR Part 274a Administrative practice and procedure, Aliens, Employment, Penalties, Reporting and recordkeeping requirements. Accordingly, chapter I of title 8 of the Code of Federal Regulations is amended as follows: E:\FR\FM\19DER5.SGM 19DER5 92304 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations PART 212—DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE 1. The authority citation for part 212 is revised to read as follows: ■ Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 1184, 1187, 1223, 1225, 1226, 1227, 1255, 1359; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108–458); 8 CFR part 2. Section 212.1(q) also issued under section 702, Pub. L. 110–229, 122 Stat. 754, 854. 2. Section 212.1 is amended by revising paragraph (o) to read as follows: ■ § 212.1 Documentary requirements for nonimmigrants. * * * * * (o) Alien in T–2 through T–6 classification. USCIS may apply paragraph (g) of this section to individuals seeking T–2, T–3, T–4, T–5, or T–6 nonimmigrant status upon request by the applicant. * * * * * ■ 3. Section 212.16 is revised to read as follows: PART 214—NONIMMIGRANT CLASSES sradovich on DSK3GMQ082PROD with RULES5 § 212.16 Applications for exercise of discretion relating to T nonimmigrant status. 21:56 Dec 16, 2016 Jkt 241001 4. The authority citation for part 214 continues to read as follows: ■ (a) Requesting the waiver. An alien requesting a waiver of inadmissibility under section 212(d)(3)(B) or (d)(13) of the Act must submit a waiver form as designated by USCIS in accordance with 8 CFR 103.2. (b) Treatment of waiver request. USCIS, in its discretion, may grant a waiver request based on section 212(d)(13) of the Act of the applicable ground(s) of inadmissibility, except USCIS may not waive a ground of inadmissibility based on sections 212(a)(3), (a)(10)(C), or (a)(10)(E) of the Act. An applicant for T nonimmigrant status is not subject to the ground of inadmissibility based on section 212(a)(4) of the Act (public charge) and is not required to file a waiver form for the public charge ground. Waiver requests are subject to a determination of national interest and connection to victimization as follows. (1) National interest. USCIS, in its discretion, may grant a waiver of inadmissibility request if it determines that it is in the national interest to exercise discretion to waive the applicable ground(s) of inadmissibility. (2) Connection to victimization. An applicant requesting a waiver under section 212(d)(13) of the Act on grounds other than the health-related grounds described in section 212(a)(1) of the Act must establish that the activities rendering him or her inadmissible were caused by, or were incident to, the VerDate Sep<11>2014 victimization described in section 101(a)(15)(T)(i)(I) of the Act. (3) Criminal grounds. In exercising its discretion, USCIS will consider the number and seriousness of the criminal offenses and convictions that render an applicant inadmissible under the criminal and related grounds in section 212(a)(2) of the Act. In cases involving violent or dangerous crimes, USCIS will only exercise favorable discretion in extraordinary circumstances, unless the criminal activities were caused by, or were incident to, the victimization described under section 101(a)(15)(T)(i)(I) of the Act. (c) No appeal. There is no appeal of a decision to deny a waiver request. Nothing in this section is intended to prevent an applicant from re-filing a request for a waiver of a ground of inadmissibility in appropriate cases. (d) Revocation. USCIS, at any time, may revoke a waiver previously authorized under section 212(d) of the Act. There is no appeal of a decision to revoke a waiver. Authority: 6 U.S.C. 111 and 202; 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 1221, 1281, 1282, 1301–1305 and 1372 and 1762; Sec. 643, Pub. L. 104–208, 110 Stat. 3009–708; Pub. L. 106–386, 114 Stat. 1477– 1480; Pub. L. 107–173, 116 Stat. 543; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 note, and 1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2. 5. Section 214.1 is amended by: a. Revising paragraph (a)(1)(viii); and b. Adding entries for ‘‘101(a)(15)(T)(v)’’ and ‘‘101(a)(15)(T)(vi)’’ in alpha/numeric sequence in the table in paragraph (a)(2). The revision and additions read as follows: ■ ■ ■ § 214.1 Nonimmigrant classifications. (a) * * * (1) * * * (viii) Section 101(a)(15)(T)(ii) is divided into (T)(ii), (T)(iii), (T)(iv), and (T)(v) for the spouse, child, parent, and unmarried sibling under 18 years of age, respectively, of a principal nonimmigrant classified under section 101(a)(15)(T)(i); and T(vi) for the adult or minor child of a derivative nonimmigrant classified under section 101(a)(15)(T)(ii); and * * * * * (2) * * * PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 Section * * Designation * 101(a)(15)(T)(v) ......... 101(a)(15)(T)(vi) ........ * * * * * * * T–5. T–6. * * * * * 6. Section 214.11 is revised to read as follows: ■ § 214.11 Alien victims of severe forms of trafficking in persons. (a) Definitions. Where applicable, USCIS will apply the definitions provided in section 103 and 107(e) of the Trafficking Victims Protection Act (TVPA) with due regard for the definitions and application of these terms in 28 CFR part 1100 and the provisions of 18 U.S.C. 77. As used in this section the term: Application for derivative T nonimmigrant status means a request by a principal alien on behalf of an eligible family member for derivative T–2, T–3, T–4, T–5, or T–6 nonimmigrant status on the form designated by USCIS for that purpose. Application for T nonimmigrant status means a request by a principal alien for T–1 nonimmigrant status on the form designated by USCIS for that purpose. Bona fide determination means a USCIS determination that an application for T–1 nonimmigrant status has been initially reviewed and determined that the application does not appear to be fraudulent, is complete and properly filed, includes completed fingerprint and background checks, and presents prima facie evidence of eligibility for T–1 nonimmigrant status including admissibility. Child means a person described in section 101(b)(1) of the Act. Coercion means 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 act would result in serious harm to or physical restraint against any person; or the abuse or threatened abuse of the legal process. Commercial sex act means any sex act on account of which anything of value is given to or received by any person. Debt bondage means the status or condition of a debtor arising from a pledge by the debtor of his or her personal services or of those of a person under his or her control as a security for debt, if the value of those services as reasonably assessed is not applied E:\FR\FM\19DER5.SGM 19DER5 sradovich on DSK3GMQ082PROD with RULES5 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations toward the liquidation of the debt or the length and nature of those services are not respectively limited and defined. Derivative T nonimmigrant means an eligible family member who has been granted T–2, T–3, T–4, T–5, or T–6 derivative status. A family member outside of the United States is not a derivative T nonimmigrant until he or she is granted a T–2, T–3, T–4, T–5, or T–6 visa by the Department of State and is admitted to the United States in derivative T nonimmigrant status. Eligible family member means a family member who may be eligible for derivative T nonimmigrant status based on his or her relationship to an alien victim and, if required, upon a showing of a present danger or retaliation; and: (1) In the case of an alien victim who is 21 years of age or older, means the spouse and children of such alien; (2) In the case of an alien victim under 21 years of age, means the spouse, children, unmarried siblings under 18 years of age, and parents of such alien; and (3) Regardless of the age of an alien victim, means any parent or unmarried sibling under 18 years of age, or adult or minor child of a derivative of such alien where the family member faces a present danger of retaliation as a result of the alien victim’s escape from a severe form of trafficking or cooperation with law enforcement. Involuntary servitude means 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 condition, that person or another person would suffer serious harm or physical restraint; or a condition of servitude induced by the abuse or threatened abuse of legal process. Involuntary servitude includes a condition of servitude in which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury, or by the use or threat of coercion through the law or the legal process. This definition encompasses those cases in which the defendant holds the victim in servitude by placing the victim in fear of such physical restraint or injury or legal coercion. Law Enforcement Agency (LEA) means a Federal, State, or local law enforcement agency, prosecutor, judge, labor agency, children’s protective services agency, or other authority that has the responsibility and authority for the detection, investigation, and/or prosecution of severe forms of trafficking in persons. Federal LEAs include but are not limited to the following: U.S. Attorneys’ Offices, Civil VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 Rights Division, Criminal Division, U.S. Marshals Service, Federal Bureau of Investigation (Department of Justice); U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP); Diplomatic Security Service (Department of State); and Department of Labor. Law Enforcement Agency (LEA) endorsement means an official LEA endorsement on the form designated by USCIS for such purpose. Peonage means a status or condition of involuntary servitude based upon real or alleged indebtedness. Principal T nonimmigrant means the victim of a severe form of trafficking in persons who has been granted T–1 nonimmigrant status. Reasonable request for assistance means a request made by an LEA to a victim to assist in the investigation or prosecution of the acts of trafficking in persons or the investigation of crime where acts of trafficking are at least one central reason for the commission of that crime. The ‘‘reasonableness’’ of the request depends on the totality of the circumstances. Factors to consider include, but are not limited to: General law enforcement and prosecutorial practices; the nature of the victimization; the specific circumstances of the victim; severe trauma (both mental and physical); access to support services; whether the request would cause further trauma: The safety of the victim or the victim’s family; compliance with other requests and the extent of such compliance; whether the request would yield essential information; whether the information could be obtained without the victim’s compliance; whether an interpreter or attorney was present to help the victim understand the request; cultural, religious, or moral objections to the request; the time the victim had to comply with the request; and the age and maturity of the victim. Severe form of trafficking in persons means 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 is under the age of 18 years; 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. Sex trafficking means the recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purpose of a commercial sex act. United States means the fifty States of the United States, the District of PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 92305 Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, and the Commonwealth of the Northern Mariana Islands. Victim of a severe form of trafficking in persons (victim) means an alien who is or has been subject to a severe form of trafficking in persons. (b) Eligibility for T–1 status. An alien is eligible for T–1 nonimmigrant status under section 101(a)(15)(T)(i) of the Act if he or she demonstrates all of the following, subject to section 214(o) of the Act: (1) Victim. The alien is or has been a victim of a severe form of trafficking in persons. (2) Physical presence. The alien is physically present in the United States or at a port-of-entry thereto, according to paragraph (g) of this section. (3) Compliance with any reasonable request for assistance. The alien has complied with any reasonable request for assistance in a Federal, State, or local investigation or prosecution of acts of trafficking in persons, or the investigation of a crime where acts of trafficking in persons are at least one central reason for the commission of that crime, or meets one of the conditions described below. (i) Exemption for minor victims. An alien under 18 years of age is not required to comply with any reasonable request. (ii) Exception for trauma. An alien who, due to physical or psychological trauma, is unable to cooperate with a reasonable request for assistance in the Federal, State, or local investigation or prosecution of acts of trafficking in persons, or the investigation of a crime where acts of trafficking in persons are at least one central reason for the commission of that crime, is not required to comply with such reasonable request. (4) Hardship. The alien would suffer extreme hardship involving unusual and severe harm upon removal. (5) Prohibition against traffickers in persons. No alien will be eligible to receive T nonimmigrant status under section 101(a)(15)(T) of the Act if there is substantial reason to believe that the alien has committed an act of a severe form of trafficking in persons. (c) Period of admission. (1) T–1 Principal. T–1 nonimmigrant status may be approved for a period not to exceed 4 years, except as provided in section 214(o)(7) of the Act. (2) Derivative family members. A derivative family member who is otherwise eligible for admission may be granted T–2, T–3, T–4, T–5, or T–6 nonimmigrant status for an initial period that does not exceed the E:\FR\FM\19DER5.SGM 19DER5 sradovich on DSK3GMQ082PROD with RULES5 92306 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations expiration date of the initial period approved for the T–1 principal alien, except as provided in section 214(o)(7) of the Act. (3) Notice. At the time an alien is approved for T nonimmigrant status or receives an extension of T nonimmigrant status, USCIS will notify the alien when his or her T nonimmigrant status will expire. USCIS also will notify the alien that the failure to apply for adjustment of status to lawful permanent resident, as set forth in 8 CFR 245.23, will result in termination of the alien’s T nonimmigrant status in the United States at the end of the 4-year period or any extension. (d) Application. USCIS has sole jurisdiction over all applications for T nonimmigrant status. (1) Filing an application. An alien seeking T–1 nonimmigrant status must submit an application for T nonimmigrant status on the form designated by USCIS in accordance with 8 CFR 103.2 and with the evidence described in paragraph (d) of this section. (i) Applicants in pending immigration proceedings. An alien in removal proceedings under section 240 of the Act, or in exclusion or deportation proceedings under former sections 236 or 242 of the Act (as in effect prior to April 1, 1997), and who wishes to apply for T–1 nonimmigrant status must file an application for T nonimmigrant status directly with USCIS. In its discretion, DHS may agree to the alien’s request to file with the immigration judge or the Board a joint motion to administratively close or terminate proceedings without prejudice, whichever is appropriate, while an application for T nonimmigrant status is adjudicated by USCIS. (ii) Applicants with final orders of removal, deportation, or exclusion. An alien subject to a final order of removal, deportation, or exclusion may file an application for T–1 nonimmigrant status directly with USCIS. The filing of an application for T nonimmigrant status has no effect on DHS authority or discretion to execute a final order of removal, although the alien may request an administrative stay of removal pursuant to 8 CFR 241.6(a). If the alien is in detention pending execution of the final order, the period of detention (under the standards of 8 CFR 241.4) reasonably necessary to bring about the applicant’s removal will be extended during the period the stay is in effect. If USCIS subsequently determines under the procedures in paragraph (e) of this section that the application is bona fide, DHS will automatically grant an VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 administrative stay of the final order of removal, deportation, or exclusion, and the stay will remain in effect until a final decision is made on the application for T nonimmigrant status. (iii) Minor applicants. When USCIS receives an application from a minor principal alien under the age of 18, USCIS will notify the Department of Health and Human Services to facilitate the provision of interim assistance. (2) Initial evidence. An application for T nonimmigrant status must include: (i) The applicant’s signed statement describing the facts of the victimization and compliance with any reasonable law enforcement request (or a basis for why he or she has not complied) and any other eligibility requirements in his or her own words; (ii) Any credible evidence that the applicant would like USCIS to consider supporting any of the eligibility requirements set out in paragraphs (f), (g), (h) and (i) of this section; and (iii) Inadmissible applicants. If an applicant is inadmissible based on a ground that may be waived, he or she must also submit a request for a waiver of inadmissibility on the form designated by USCIS with the fee prescribed by 8 CFR 103.7(b)(1), in accordance with form instructions and 8 CFR 212.16, and accompanied by supporting evidence. (3) Evidence from law enforcement. An applicant may wish to submit evidence from an LEA to help establish certain eligibility requirements for T nonimmigrant status. Evidence from an LEA is optional and is not given any special evidentiary weight. (i) Law Enforcement Agency (LEA) endorsement. An LEA endorsement is optional evidence that can be submitted to help demonstrate victimization and/ or compliance with reasonable requests. An LEA endorsement is not mandatory and is not given any special evidentiary weight. An LEA endorsement itself does not grant a benefit and is one form of possible evidence but it does not lead to automatic approval of the application for T nonimmigrant status by USCIS. If provided, the LEA endorsement must be submitted on the form designated by USCIS in accordance with the form instructions and must be signed by a supervising official responsible for the detection, investigation or prosecution of severe forms of trafficking in persons. The LEA endorsement must attach the results of any name or database inquiries performed and describe the victimization (including dates where known) and the cooperation of the victim. USCIS, not the LEA, will determine if the applicant was or is a victim of a severe form of trafficking in PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 persons, and otherwise meets the eligibility requirements for T nonimmigrant status. The decision whether to complete an LEA endorsement is at the discretion of the LEA. A formal investigation or prosecution is not required to complete an LEA endorsement. (ii) Disavowed or revoked LEA endorsement. An LEA may revoke or disavow the contents of a previously submitted endorsement in writing. After revocation or disavowal, the LEA endorsement will no longer be considered as evidence. (iii) Continued Presence. An applicant granted Continued Presence under 28 CFR 110.35 should submit documentation of the grant of Continued Presence. If Continued Presence has been revoked, it will no longer be considered as evidence. (iv) Other evidence. An applicant may also submit any evidence regarding entry or admission into the United States or permission to remain in the United States or note that such evidence is contained in an applicant’s immigration file. (4) Biometric services. All applicants for T–1 nonimmigrant status must submit biometrics in accordance with 8 CFR 103.16. (5) Evidentiary standards and burden of proof. The burden is on the applicant to demonstrate eligibility for T–1 nonimmigrant status. The applicant may submit any credible evidence relating to a T nonimmigrant application for consideration by USCIS. USCIS will conduct a de novo review of all evidence and may investigate any aspect of the application. Evidence previously submitted by the applicant for any immigration benefit or relief may be used by USCIS in evaluating the eligibility of an applicant for T–1 nonimmigrant status. USCIS will not be bound by previous factual determinations made in connection with a prior application or petition for any immigration benefit or relief. USCIS will determine, in its sole discretion, the evidentiary value of previously or concurrently submitted evidence. (6) Interview. USCIS may require an applicant for T nonimmigrant status to participate in a personal interview. The necessity and location of the interview is determined solely by USCIS in accordance with 8 CFR part 103. Every effort will be made to schedule the interview in a location convenient to the applicant. (7) Bona fide determination. Once an alien submits an application for T–1 nonimmigrant status, USCIS will conduct an initial review to determine if the application is a bona fide E:\FR\FM\19DER5.SGM 19DER5 sradovich on DSK3GMQ082PROD with RULES5 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations application for T–1 nonimmigrant status under the provisions of paragraph (e) of this section. (8) Decision. After completing its de novo review of the application and evidence, USCIS will issue a decision approving or denying the application in accordance with 8 CFR 103.3. (9) Approval. If USCIS determines that the applicant is eligible for T–1 nonimmigrant status, USCIS will approve the application and grant T–1 nonimmigrant status, subject to the annual limitation as provided in paragraph (j) of this section. USCIS will provide the applicant with evidence of T–1 nonimmigrant status. USCIS may also notify other parties and entities of the approval as it determines appropriate, including any LEA providing an LEA endorsement and the Department of Health and Human Service’s Office of Refugee Resettlement, consistent with 8 U.S.C. 1367. (i) Applicants with an outstanding order of removal, deportation or exclusion issued by DHS. For an applicant who is the subject of an order of removal, deportation or exclusion issued by DHS, the order will be deemed cancelled by operation of law as of the date of the USCIS approval of the application. (ii) Applicants with an outstanding order of removal, deportation or exclusion issued by the Department of Justice. An applicant who is the subject of an order of removal, deportation or exclusion issued by an immigration judge or the Board may seek cancellation of such order by filing a motion to reopen and terminate removal proceedings with the immigration judge or the Board. ICE may agree, as a matter of discretion, to join such motion to overcome any applicable time and numerical limitations of 8 CFR 1003.2 and 1003.23. (10) Denial. Upon denial of an application, USCIS will notify the applicant in accordance with 8 CFR 103.3. USCIS may also notify any LEA providing an LEA endorsement and the Department of Health and Human Service’s Office of Refugee Resettlement. If an applicant appeals a denial in accordance with 8 CFR 103.3, the denial will not become final until the administrative appeal is decided. (i) Effect on bona fide determination. Upon denial of an application, any benefits derived from a bona fide determination will automatically be revoked when the denial becomes final. (ii) Applicants previously in removal proceedings. In the case of an applicant who was previously in removal proceedings that were terminated on the VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 basis of a pending application for T nonimmigrant status, once a denial becomes final, DHS may file a new Notice to Appear to place the individual in removal proceedings again. (iii) Applicants subject to an order of removal, deportation or exclusion. In the case of an applicant who is subject to an order of removal, deportation or exclusion that had been stayed due to the pending application for T nonimmigrant status, the stay will be automatically lifted as of the date the denial becomes final. (11) Employment authorization. An alien granted T–1 nonimmigrant status is authorized to work incident to status. There is no need for an alien to file a separate form to be granted employment authorization. USCIS will issue an initial Employment Authorization Document (EAD) to such aliens, which will be valid for the duration of the alien’s T–1 nonimmigrant status. An alien granted T–1 nonimmigrant status seeking to replace an EAD that was lost, stolen, or destroyed must file an application on the form designated by USCIS in accordance with form instructions. (e) Bona fide determination. Once an alien submits an application for T–1 nonimmigrant status, USCIS will conduct an initial review to determine if the application is a bona fide application for T–1 nonimmigrant status. (1) Criteria. After initial review, an application will be determined to be bona fide if: (i) The application is properly filed and is complete; (ii) The application does not appear to be fraudulent; (iii) The application presents prima facie evidence of each eligibility requirement for T–1 nonimmigrant status; (iv) Biometrics and background checks are complete; and (v) The applicant is: (A) Admissible to the United States; or (B) Inadmissible to the United States based on a ground that may be waived (other than section 212(a)(4) of the Act); and either the applicant has filed a waiver of a ground of inadmissibility described in section 212(d)(13) of the Act concurrently with the application for T nonimmigrant status, or USCIS has already granted a waiver with respect to any ground of inadmissibility that applies to the applicant. USCIS may request further evidence from the applicant. All waivers are discretionary and require a request for waiver, on the form designated by USCIS. PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 92307 (2) USCIS determination. An application will not be treated as bona fide until USCIS provides notice to the applicant. (i) Incomplete or insufficient application. If an application is incomplete or if an application is complete but does not present sufficient evidence to establish prima facie eligibility for each eligibility requirement for T–1 nonimmigrant status, USCIS may request additional information, issue a notice of intent to deny as provided in 8 CFR 103.2(b)(8), or may adjudicate the application on the basis of the evidence presented under the procedures of this section. (ii) Notice. Once USCIS determines an application is bona fide, USCIS will notify the applicant. An application will be treated as a bona fide application as of the date of the notice. (3) Stay of final order of removal, deportation, or exclusion. If USCIS determines that an application is bona fide it automatically stays the execution of any final order of removal, deportation, or exclusion. This administrative stay will remain in effect until any adverse decision becomes final. The filing of an application for T nonimmigrant status does not automatically stay the execution of a final order unless USCIS has determined that the application is bona fide. Neither an immigration judge nor the Board has jurisdiction to adjudicate an application for a stay of removal, deportation, or exclusion on the basis of the filing of an application for T nonimmigrant status. (f) Victim of a severe form of trafficking in persons. To be eligible for T–1 nonimmigrant status an applicant must meet the definition of a victim of a severe form of trafficking in persons described in paragraph (a) of this section. (1) Evidence. The applicant must submit evidence that demonstrates that he or she is or has been a victim of a severe form of trafficking in persons. Except in instances of sex trafficking involving victims under 18 years of age, severe forms of trafficking in persons must involve both a particular means (force, fraud, or coercion) and a particular end or a particular intended end (sex trafficking, involuntary servitude, peonage, debt bondage, or slavery). If a victim has not performed labor or services, or a commercial sex act, the victim must establish that he or she was recruited, transported, harbored, provided, or obtained for the purposes of subjection to sex trafficking, involuntary servitude, peonage, debt bondage, or slavery, or patronized or solicited for the purposes of subjection E:\FR\FM\19DER5.SGM 19DER5 sradovich on DSK3GMQ082PROD with RULES5 92308 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations to sex trafficking. The applicant may satisfy this requirement by submitting: (i) An LEA endorsement as described in paragraph (d)(3) of this section; (ii) Documentation of a grant of Continued Presence under 28 CFR 1100.35; or (iii) Any other evidence, including but not limited to, trial transcripts, court documents, police reports, news articles, copies of reimbursement forms for travel to and from court, and/or affidavits. In the victim’s statement prescribed by paragraph (d)(2) of this section, the applicant should describe what the alien has done to report the crime to an LEA and indicate whether criminal records relating to the trafficking crime are available. (2) If the Continued Presence has been revoked or the contents of the LEA endorsement have been disavowed based on a determination that the applicant is not or was not a victim of a severe form of trafficking in persons, it will no longer be considered as evidence. (g) Physical presence. To be eligible for T–1 nonimmigrant status an applicant must be physically present in the United States, American Samoa, or at a port-of-entry thereto on account of such trafficking. (1) Applicability. The physical presence requirement requires USCIS to consider the alien’s presence in the United States at the time of application. The requirement reaches an alien who: (i) Is present because he or she is currently being subjected to a severe form of trafficking in persons; (ii) Was liberated from a severe form of trafficking in persons by an LEA; (iii) Escaped a severe form of trafficking in persons before an LEA was involved, subject to paragraph (g)(2) of this section; (iv) Was subject to a severe form of trafficking in persons at some point in the past and whose continuing presence in the United States is directly related to the original trafficking in persons; or (v) Is present on account of the alien having been allowed entry into the United States for participation in investigative or judicial processes associated with an act or perpetrator of trafficking. (2) Departure from the United States. An alien who has voluntarily departed from (or has been removed from) the United States at any time after the act of a severe form of trafficking in persons is deemed not to be present in the United States as a result of such trafficking in persons unless: (i) The alien’s reentry into the United States was the result of the continued victimization of the alien; VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 (ii) The alien is a victim of a new incident of a severe form of trafficking in persons; or (iii) The alien has been allowed reentry into the United States for participation in investigative or judicial processes associated with an act or perpetrator of trafficking, described in paragraph (g)(4) of this section. (3) Presence for participation in investigative or judicial processes. An alien who was allowed initial entry or reentry into the United States for participation in investigative or judicial processes associated with an act or perpetrator of trafficking will be deemed to be physically present in the United States on account of trafficking in persons, regardless of where such trafficking occurred. To satisfy this section, an alien must submit documentation to show valid entry into the United States and evidence that this valid entry is for participation in investigative or judicial processes associated with an act or perpetrator of trafficking. (4) Evidence. The applicant must submit evidence that demonstrates that his or her physical presence in the United States or at a port-of-entry thereto, is on account of trafficking in persons, including physical presence on account of the alien having been allowed entry into the United States for participation in investigative or judicial processes associated with an act or a perpetrator of trafficking. USCIS will consider all evidence presented to determine the physical presence requirement, including the alien’s responses to questions on the application for T nonimmigrant status about when he or she escaped from the trafficker, what activities he or she has undertaken since that time including the steps he or she may have taken to deal with the consequences of having been trafficked, and the applicant’s ability to leave the United States. The applicant may satisfy this requirement by submitting: (i) An LEA endorsement, described in paragraph (d)(3) of this section; (ii) Documentation of a grant of Continued Presence under 28 CFR 1100.35; (iii) Any other documentation of entry into the United States or permission to remain in the United States, such as parole under section 212(d)(5) of the Act, or a notation that such evidence is contained in the applicant’s immigration file; or (iv) Any other credible evidence, including a personal statement from the applicant, stating the date and place (if known) and the manner and purpose (if known) for which the applicant entered PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 the United States and demonstrating that the applicant is now present on account of the trafficking. (h) Compliance with any reasonable request for assistance in an investigation or prosecution. To be eligible for T–1 nonimmigrant status, an applicant must have complied with any reasonable request for assistance from an LEA in an investigation or prosecution of acts of trafficking or the investigation of a crime where acts of trafficking are at least one central reason for the commission of that crime, unless the applicant meets an exemption described in paragraph (h)(4) of this section. (1) Applicability. An applicant must have had, at a minimum, contact with an LEA regarding the acts of a severe form of trafficking in persons. An applicant who has never had contact with an LEA regarding the acts of a severe form of trafficking in persons will not be eligible for T–1 nonimmigrant status, unless he or she meets an exemption described in paragraph (h)(4) of this section. (2) Unreasonable requests. An applicant need only show compliance with reasonable requests made by an LEA for assistance in the investigation or prosecution of the acts of trafficking in persons. The reasonableness of the request depends on the totality of the circumstances. Factors to consider include, but are not limited to: (i) General law enforcement and prosecutorial practices; (ii) The nature of the victimization; (iii) The specific circumstances of the victim; (iv) Severity of trauma suffered (both mental and physical) or whether the request would cause further trauma; (v) Access to support services; (vi) The safety of the victim or the victim’s family; (vii) Compliance with previous requests and the extent of such compliance; (viii) Whether the request would yield essential information; (ix) Whether the information could be obtained without the victim’s compliance; (x) Whether an interpreter or attorney was present to help the victim understand the request; (xi) Cultural, religious, or moral objections to the request; (xii) The time the victim had to comply with the request; and (xiii) The age and maturity of the victim. (3) Evidence. An applicant must submit evidence that demonstrates that he or she has complied with any reasonable request for assistance in a E:\FR\FM\19DER5.SGM 19DER5 sradovich on DSK3GMQ082PROD with RULES5 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations Federal, State, or local investigation or prosecution of trafficking in persons, or a crime where trafficking in persons is at least one central reason for the commission of that crime. In the alternative, an applicant can submit evidence to demonstrate that he or she should be exempt under paragraph (h)(4) of this section. If USCIS has any question about whether the applicant has complied with a reasonable request for assistance, USCIS may contact the LEA. The applicant may satisfy this requirement by submitting any of the following: (i) An LEA endorsement as described in paragraph (d)(3) of this section; (ii) Documentation of a grant of Continued Presence under 28 CFR 1100.35; or (iii) Any other evidence, including affidavits of witnesses. In the victim’s statement prescribed by paragraph (d)(2) of this section, the applicant should show that an LEA that has responsibility and authority for the detection, investigation, or prosecution of severe forms of trafficking in persons has information about such trafficking in persons, that the victim has complied with any reasonable request for assistance in the investigation or prosecution of such acts of trafficking, and, if the victim did not report the crime, why the crime was not previously reported. (4) An applicant who has not had contact with an LEA or who has not complied with any reasonable request may be exempt from the requirement to comply with any reasonable request for assistance in an investigation or prosecution if either of the following two circumstances applies: (i) Trauma. The applicant is unable to cooperate with a reasonable request for assistance in the Federal, State, or local investigation or prosecution of acts of trafficking in persons due to physical or psychological trauma. An applicant must submit evidence of the trauma. An applicant may satisfy this by submitting an affirmative statement describing the trauma and any other credible evidence. ‘‘Any other credible evidence’’ includes, for instance, a signed statement from a qualified professional, such as a medical professional, social worker, or victim advocate, who attests to the victim’s mental state, and medical, psychological, or other records which are relevant to the trauma. USCIS reserves the authority and discretion to contact the LEA involved in the case, if appropriate; or (ii) Age. The applicant is under 18 years of age. An applicant under 18 years of age is exempt from the requirement to comply with any VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 reasonable request for assistance in an investigation or prosecution, but he or she must submit evidence of age. Applicants should include, where available, an official copy of the alien’s birth certificate, a passport, or a certified medical opinion. Other evidence regarding the age of the applicant may be submitted in accordance with 8 CFR 103.2(b)(2)(i). (i) Extreme hardship involving unusual and severe harm. To be eligible for T–1 nonimmigrant status, an applicant must demonstrate that removal from the United States would subject the applicant to extreme hardship involving unusual and severe harm. (1) Standard. Extreme hardship involving unusual and severe harm is a higher standard than extreme hardship as described in 8 CFR 240.58. A finding of extreme hardship involving unusual and severe harm may not be based solely upon current or future economic detriment, or the lack of, or disruption to, social or economic opportunities. The determination of extreme hardship is made solely by USCIS. (2) Factors. Factors that may be considered in evaluating whether removal would result in extreme hardship involving unusual and severe harm should include both traditional extreme hardship factors and factors associated with having been a victim of a severe form of trafficking in persons. These factors include, but are not limited to: (i) The age, maturity, and personal circumstances of the applicant; (ii) Any physical or psychological issues the applicant has which necessitates medical or psychological care not reasonably available in the foreign country; (iii) The nature and extent of the physical and psychological consequences of having been a victim of a severe form of trafficking in persons; (iv) The impact of the loss of access to the United States courts and the criminal justice system for purposes relating to the incident of a severe form of trafficking in persons or other crimes perpetrated against the applicant, including criminal and civil redress for acts of trafficking in persons, criminal prosecution, restitution, and protection; (v) The reasonable expectation that the existence of laws, social practices, or customs in the foreign country to which the applicant would be returned would penalize the applicant severely for having been the victim of a severe form of trafficking in persons; (vi) The likelihood of re-victimization and the need, ability, and willingness of PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 92309 foreign authorities to protect the applicant; (vii) The likelihood of harm that the trafficker in persons or others acting on behalf of the trafficker in the foreign country would cause the applicant; or (viii) The likelihood that the applicant’s individual safety would be threatened by the existence of civil unrest or armed conflict. (3) Evidence. An applicant must submit evidence that demonstrates he or she would suffer extreme hardship involving unusual and severe harm if removed from the United States. An applicant is encouraged to describe and document all factors that may be relevant to the case, as there is no guarantee that a particular reason(s) will satisfy the requirement. Hardship to persons other than the alien victim cannot be considered in determining whether an applicant would suffer the requisite hardship. The applicant may satisfy this requirement by submitting any credible evidence regarding the nature and scope of the hardship if the applicant was removed from the United States, including evidence of hardship arising from circumstances surrounding the victimization and any other circumstances. An applicant may submit a personal statement or other evidence, including evidence from relevant country condition reports and any other public or private sources of information. (j) Annual cap. In accordance with section 214(o)(2) of the Act, DHS may not grant T–1 nonimmigrant status to more than 5,000 aliens in any fiscal year. (1) Waiting list. All eligible applicants who, due solely to the cap, are not granted T–1 nonimmigrant status will be placed on a waiting list and will receive written notice of such placement. Priority on the waiting list will be determined by the date the application was properly filed, with the oldest applications receiving the highest priority. In the next fiscal year, USCIS will issue a number to each application on the waiting list, in the order of the highest priority, providing the applicant remains admissible and eligible for T nonimmigrant status. After T–1 nonimmigrant status has been issued to qualifying applicants on the waiting list, any remaining T–1 nonimmigrant numbers for that fiscal year will be issued to new qualifying applicants in the order that the applications were properly filed. (2) Unlawful presence. While an applicant for T nonimmigrant status who was granted deferred action or parole is on the waiting list, the applicant will not accrue unlawful E:\FR\FM\19DER5.SGM 19DER5 sradovich on DSK3GMQ082PROD with RULES5 92310 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations presence under section 212(a)(9)(B) of the Act while maintaining parole or deferred action. (3) Removal from the waiting list. An applicant may be removed from the waiting list and the deferred action or parole may be terminated consistent with law and policy. Applicants on the waiting list must remain admissible to the United States and otherwise eligible for T nonimmigrant status. If at any time prior to final adjudication USCIS receives information that an applicant is no longer eligible for nonimmigrant status, the applicant may be removed from the waiting list and the deferred action or parole may be terminated. USCIS will provide notice to the applicant of that decision. (k) Application for eligible family members. (1) Eligibility. Subject to section 214(o) of the Act, an alien who has applied for or has been granted T– 1 nonimmigrant status (principal alien) may apply for the admission of an eligible family member, who is otherwise admissible to the United States, in derivative T nonimmigrant status if accompanying or following to join the principal alien. (i) Principal alien 21 years of age or older. For a principal alien who is 21 years of age or over, eligible family member means a T–2 (spouse) or T–3 (child). (ii) Principal alien under 21 years of age. For a principal alien who is under 21 years of age, eligible family member means a T–2 (spouse), T–3 (child), T–4 (parent), or T–5 (unmarried sibling under the age of 18). (iii) Family member facing danger of retaliation. Regardless of the age of the principal alien, if the eligible family member faces a present danger of retaliation as a result of the principal alien’s escape from the severe form of trafficking or cooperation with law enforcement, in consultation with the law enforcement officer investigating a severe form of trafficking, eligible family member means a T–4 (parent), T–5 (unmarried sibling under the age of 18), or T–6 (adult or minor child of a derivative of the principal alien). (iv) Admission requirements. The principal applicant must demonstrate that the alien for whom derivative T nonimmigrant status is being sought is an eligible family member of the T–1 principal alien, as defined in paragraph (a) of this section, and is otherwise eligible for that status. (2) Application. A T–1 principal alien may submit an application for derivative T nonimmigrant status on the form designated by USCIS in accordance with the form instructions. The application for derivative T VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 nonimmigrant status for an eligible family member may be filed with the T– 1 application, or separately. Derivative T nonimmigrant status is dependent on the principal alien having been granted T–1 nonimmigrant status and the principal alien maintaining T–1 nonimmigrant status. If a principal alien granted T–1 nonimmigrant status cannot maintain status due to his or her death, the provisions of section 204(l) of the Act may apply. (i) Eligible family members in pending immigration proceedings. If an eligible family member is in removal proceedings under section 240 of the Act, or in exclusion or deportation proceedings under former sections 236 or 242 of the Act (as in effect prior to April 1, 1997), the principal alien must file an application for derivative T nonimmigrant status directly with USCIS. In its discretion and at the request of the eligible family member, ICE may agree to file a joint motion to administratively close or terminate proceedings without prejudice with the immigration judge or the Board, whichever is appropriate, while USCIS adjudicates an application for derivative T nonimmigrant status. (ii) Eligible family members with final orders of removal, deportation, or exclusion. If an eligible family member is the subject of a final order of removal, deportation, or exclusion, the principal alien may file an application for derivative T nonimmigrant status directly with USCIS. The filing of an application for derivative T nonimmigrant status has no effect on ICE’s authority or discretion to execute a final order, although the alien may file a request for an administrative stay of removal pursuant to 8 CFR 241.6(a). If the eligible family member is in detention pending execution of the final order, the period of detention (under the standards of 8 CFR 241.4) will be extended while a stay is in effect for the period reasonably necessary to bring about the applicant’s removal. (3) Required supporting evidence. In addition to the form, an application for derivative T nonimmigrant status must include the following: (i) Biometrics submitted in accordance with 8 CFR 103.16; (ii) Evidence demonstrating the relationship of an eligible family member, as provided in paragraph (k)(4) of this section; (iii) In the case of an alien seeking derivative T nonimmigrant status on the basis of danger of retaliation, evidence demonstrating this danger as provided in paragraph (k)(6) of this section. (iv) Inadmissible applicants. If an eligible family member is inadmissible PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 based on a ground that may be waived, a request for a waiver of inadmissibility under section 212(d)(13) or section 212(d)(3) of the Act must be filed in accordance with 8 CFR 212.16 and submitted with the completed application package. (4) Relationship. Except as described in paragraphs (k)(5) of this section, the family relationship must exist at the time: (i) The application for the T–1 nonimmigrant status is filed; (ii) The application for the T–1 nonimmigrant status is adjudicated; (iii) The application for derivative T nonimmigrant status is filed; (iv) The application for derivative T nonimmigrant status is adjudicated; and (v) The eligible family member is admitted to the United States if residing abroad. (5) Relationship and age-out protections. (i) Protection for new child of a principal alien. If the T–1 principal alien proves that he or she had a child after filing the application for T–1 nonimmigrant status, the child will be deemed to be an eligible family member eligible to accompany or follow to join the T–1 principal alien. (ii) Age-out protection for eligible family members of a principal alien under 21 years of age. If the T–1 principal alien was under 21 years of age when he or she filed for T–1 nonimmigrant status, USCIS will continue to consider a parent or unmarried sibling as an eligible family member. A parent or unmarried sibling will remain eligible even if the principal alien turns 21 years of age before adjudication of the T–1 application. An unmarried sibling will remain eligible even if the unmarried sibling is over 18 years of age at the time of adjudication of the T–1 application, so long as the unmarried sibling was under 18 years of age at the time of the T–1 application. The age of an unmarried sibling when USCIS adjudicates the T–1 application, when the unmarried sibling files the derivative application, when USCIS adjudicates the derivative application, or when the unmarried sibling is admitted to the United States does not affect eligibility. (iii) Age-out protection for child of a principal alien 21 years of age or older. If a T–1 principal alien was 21 years of age or older when he or she filed for T– 1 nonimmigrant status, USCIS will continue to consider a child as an eligible family member if the child was under 21 years of age at the time the principal filed for T–1 nonimmigrant status. The child will remain eligible even if the child is over 21 years of age at the time of adjudication of the T–1 E:\FR\FM\19DER5.SGM 19DER5 sradovich on DSK3GMQ082PROD with RULES5 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations application. The age of the child when USCIS adjudicates the T–1 application, when the child files the derivative application, when USCIS adjudicates the derivative application, or when the child is admitted to the United States does not affect eligibility. (iv) Marriage of an eligible family member. An eligible family member seeking T–3 or T–5 status must be unmarried when the principal files an application for T–1 status, when USCIS adjudicates the T–1 application, when the eligible family member files for T– 3 or T–5 status, when USCIS adjudicates the T–3 or T–5 application, and when the family member is admitted to the United States. If a T–1 marries subsequent to filing the application for T–1 status, USCIS will not consider the spouse eligible as a T–2 eligible family member. (6) Evidence demonstrating a present danger of retaliation. An alien seeking derivative T nonimmigrant status on the basis of facing a present danger of retaliation as a result of the T–1 victim’s escape from a severe form of trafficking or cooperation with law enforcement, must demonstrate the basis of this danger. USCIS may contact the LEA involved, if appropriate. An applicant may satisfy this requirement by submitting: (i) Documentation of a previous grant of advance parole to an eligible family member; (ii) A signed statement from a law enforcement official describing the danger of retaliation; (iii) An affirmative statement from the applicant describing the danger the family member faces and how the danger is linked to the victim’s escape or cooperation with law enforcement (ordinarily an applicant’s statement alone is not sufficient to prove present danger); and/or (iv) Any other credible evidence, including trial transcripts, court documents, police reports, news articles, copies of reimbursement forms for travel to and from court, and affidavits from other witnesses. (7) Biometric collection; evidentiary standards. The provisions for biometric capture and evidentiary standards described in paragraph (d)(2) and (d)(4) of this section apply to an eligible family member’s application for derivative T nonimmigrant status. (8) Review and decision. USCIS will review the application and issue a decision in accordance with paragraph (d) of this section. (9) Derivative approvals. Aliens whose applications for derivative T nonimmigrant status are approved are not subject to the annual cap described VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 in paragraph (j) of this section. USCIS will not approve applications for derivative T nonimmigrant status until USCIS has approved T–1 nonimmigrant status to the related principal alien. (i) Approvals for eligible family members in the United States. When USCIS approves an application for derivative T nonimmigrant status for an eligible family member in the United States, USCIS will concurrently approve derivative T nonimmigrant status. USCIS will notify the T–1 principal alien of such approval and provide evidence of derivative T nonimmigrant status to the derivative. (ii) Approvals for eligible family members outside the United States. When USCIS approves an application for an eligible family member outside the United States, USCIS will notify the T–1 principal alien of such approval and provide the necessary documentation to the Department of State for consideration of visa issuance. (10) Employment authorization. An alien granted derivative T nonimmigrant status may apply for employment authorization by filing an application on the form designated by USCIS with the fee prescribed in 8 CFR 103.7(b)(1) in accordance with form instructions. For derivatives in the United States, the application may be filed concurrently with the application for derivative T nonimmigrant status or at any later time. For derivatives outside the United States, an application for employment authorization may only be filed after admission to the United States in T nonimmigrant status. If the application for employment authorization is approved, the derivative alien will be granted employment authorization pursuant to 8 CFR 274a.12(c)(25) for the period remaining in derivative T nonimmigrant status. (l) Extension of T nonimmigrant status. (1) Eligibility. USCIS may grant extensions of T–1 nonimmigrant status beyond 4 years from the date of approval in 1-year periods from the date the T–1 nonimmigrant status ends if: (i) An LEA investigating or prosecuting 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; (ii) The Secretary of Homeland Security determines that an extension is warranted due to exceptional circumstances; or (iii) The alien has a pending application for adjustment of status to that of a lawful permanent resident. (2) Application for a discretionary extension of status. Upon application, USCIS may extend T–1 nonimmigrant PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 92311 status based on law enforcement need or exceptional circumstances. A T–1 nonimmigrant may apply for an extension by submitting the form designated by USCIS with the prescribed fee and in accordance with form instructions. A T–1 nonimmigrant should indicate on the application whether USCIS should apply the extension to any family member holding derivative T nonimmigrant status. (3) Timely filing. An alien should file the application to extend nonimmigrant status before the expiration of T–1 nonimmigrant status. If T–1 nonimmigrant status has expired, the applicant must explain in writing the reason for the untimely filing. USCIS may exercise its discretion to approve an untimely filed application for extension of T nonimmigrant status. (4) Evidence. In addition to the application, a T–1 nonimmigrant must include evidence to support why USCIS should grant an extension of T nonimmigrant status. The nonimmigrant bears the burden of establishing eligibility for an extension of status. (5) Evidence of law enforcement need. An applicant may demonstrate law enforcement need by submitting evidence that comes directly from an LEA, including: (i) A new LEA endorsement; (ii) Evidence from a law enforcement official, prosecutor, judge, or other authority who can investigate or prosecute human trafficking activity, such as a letter on the agency’s letterhead, email, or fax; or (iii) Any other credible evidence. (6) Evidence of exceptional circumstances. An applicant may demonstrate exceptional circumstances by submitting: (i) The applicant’s affirmative statement; or (ii) Any other credible evidence, including medical records, police or court records, news articles, correspondence with an embassy or consulate, and affidavits of witnesses. (7) Mandatory extensions of status for adjustment of status applicants. USCIS will automatically extend T–1 nonimmigrant status when a T nonimmigrant properly files an application for adjustment of status in accordance with 8 CFR 245.23. No separate application for extension of T nonimmigrant status, or supporting evidence, is required. (m) Revocation of approved T nonimmigrant status. (1) Automatic revocation of derivative status. An approved application for derivative T nonimmigrant status will be revoked automatically if the beneficiary of the approved derivative application notifies E:\FR\FM\19DER5.SGM 19DER5 sradovich on DSK3GMQ082PROD with RULES5 92312 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations USCIS that he or she will not apply for admission to the United States. (2) Revocation on notice/grounds for revocation. USCIS may revoke an approved application for T nonimmigrant status following issuance of a notice of intent to revoke. USCIS may revoke an approved application for T nonimmigrant status based on one or more of the following reasons: (i) The approval of the application violated the requirements of section 101(a)(15)(T) of the Act or 8 CFR 214.11 or involved error in preparation, procedure, or adjudication that affects the outcome; (ii) In the case of a T–2 spouse, the alien’s divorce from the T–1 principal alien has become final; (iii) In the case of a T–1 principal alien, an LEA with jurisdiction to detect or investigate the acts of severe forms of trafficking in persons notifies USCIS that the alien has refused to comply with reasonable requests to assist with the investigation or prosecution of the trafficking in persons and provides USCIS with a detailed explanation in writing; or (iv) The LEA that signed the LEA endorsement withdraws it or disavows its contents and notifies USCIS and provides a detailed explanation of its reasoning in writing. (3) Procedures. Procedures for revocation and appeal follow 8 CFR 103.3. If USCIS revokes approval of the previously granted T nonimmigrant status application, USCIS may notify the LEA who signed the LEA endorsement, any consular officer having jurisdiction over the applicant, or the Office of Refugee Resettlement of the Department of Health and Human Services. (4) Effect of revocation. Revocation of a principal alien’s application for T–1 nonimmigrant status will result in termination of T–1 status for the principal alien and, consequently, the automatic termination of the derivative T nonimmigrant status for all derivatives. If a derivative application is pending at the time of revocation, it will be denied. Revocation of an approved application for T–1 nonimmigrant status or an application for derivative T nonimmigrant status also revokes any waiver of inadmissibility granted in conjunction with such application. The revocation of an alien’s T–1 status will have no effect on the annual cap described in paragraph (j) of this section. (n) Removal proceedings. Nothing in this section prohibits DHS from instituting removal proceedings for conduct committed after admission, or for conduct or a condition that was not disclosed prior to the granting of T VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 nonimmigrant status, including misrepresentations of material facts in the application for T–1 nonimmigrant status or in an application for derivative T nonimmigrant status, or after revocation of T nonimmigrant status. (o) USCIS employee referral. Any USCIS employee who, while carrying out his or her official duties, comes into contact with an alien believed to be a victim of a severe form of trafficking in persons and is not already working with an LEA should consult, as necessary, with the ICE officials responsible for victim protection, trafficking investigations and prevention, and deterrence. The ICE office may, in turn, refer the victim to another LEA with responsibility for investigating or prosecuting severe forms of trafficking in persons. If the alien has a credible claim to victimization, USCIS may advise the alien that he or she can submit an application for T nonimmigrant status and seek any other benefit or protection for which he or she may be eligible, provided doing so would not compromise the alien’s safety. (p) Restrictions on use and disclosure of information relating to applicants for T nonimmigrant classification. (1) The use or disclosure (other than to a sworn officer or employee of DHS, the Department of Justice, the Department of State, or a bureau or agency of any of those departments, for legitimate department, bureau, or agency purposes) of any information relating to the beneficiary of a pending or approved application for T nonimmigrant status is prohibited unless the disclosure is made in accordance with an exception described in 8 U.S.C. 1367(b). (2) Information protected under 8 U.S.C. 1367(a)(2) may be disclosed to federal prosecutors to comply with constitutional obligations to provide statements by witnesses and certain other documents to defendants in pending federal criminal proceedings. (3) Agencies receiving information under this section, whether governmental or non-governmental, are bound by the confidentiality provisions and other restrictions set out in 8 U.S.C. 1367. (4) DHS officials are prohibited from making adverse determinations of admissibility or deportability based on information obtained solely from the trafficker, unless the alien has been convicted of a crime or crimes listed in section 237(a)(2) of the Act. PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 PART 245—ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR PERMANENT RESIDENCE 7. The authority citation for part 245 continues to read as follows: ■ Authority: 8 U.S.C. 1101, 1103, 1182, 1255; Pub. L. 105–100, section 202, 111 Stat. 2160, 2193; Pub. L. 105–277, section 902, 112 Stat. 2681; Pub. L. 110–229, tit. VII, 122 Stat. 754; 8 CFR part 2. 8. Section 245.23(a)(3) and (b)(2) are revised to read as follows: ■ § 245.23 Adjustment of aliens in T nonimmigrant classification. (a) * * * (3) Has been physically present in the United States for a continuous period of at least 3 years since the first date of lawful admission as a T–1 nonimmigrant, or has been physically present in the United States for a continuous period during the investigation or prosecution of acts of trafficking and the Attorney General has determined that the investigation or prosecution is complete, whichever period is less; except (i) If the applicant has departed from the United States for any single period in excess of 90 days or for any periods in the aggregate exceeding 180 days, the applicant shall be considered to have failed to maintain continuous physical presence in the United States for purposes of section 245(l)(1)(A) of the Act; and (ii) If the alien was granted T nonimmigrant status under 8 CFR 214.11, such alien’s physical presence in the CNMI before, on, or after November 28, 2009, and subsequent to the grant of T nonimmigrant status, is considered as equivalent to presence in the United States pursuant to an admission in T nonimmigrant status. * * * * * (b) * * * (2) The derivative family member was lawfully admitted to the United States in derivative T nonimmigrant status under section 101(a)(15)(T)(ii) of the Act, and continues to hold such status at the time of application; * * * * * PART 274a—CONTROL OF EMPLOYMENT OF ALIENS 9. The authority citation for part 274a continues to read as follows: ■ Authority: 8 U.S.C. 1101, 1103, 1324a; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 101–410, 104 Stat. 890, as amended by Pub. L. 114– 74, 129 Stat. 599. 10. Section 274a.12 is amended by revising paragraphs (a)(16) and (c)(25) to read as follows: ■ E:\FR\FM\19DER5.SGM 19DER5 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations § 274a.12 Classes of aliens authorized to accept employment. sradovich on DSK3GMQ082PROD with RULES5 (a) * * * (16) Any alien in T–1 nonimmigrant status, pursuant to 8 CFR 214.11, for the period in that status, as evidenced by an VerDate Sep<11>2014 21:56 Dec 16, 2016 Jkt 241001 employment authorization document issued by USCIS to the alien. * * * * * (c) * * * (25) Any alien in T–2, T–3, T–4, T– 5, or T–6 nonimmigrant status, pursuant to 8 CFR 214.11, for the period in that status, as evidenced by an employment PO 00000 Frm 00049 Fmt 4701 Sfmt 9990 92313 authorization document issued by USCIS to the alien. * * * * * Jeh Charles Johnson, Secretary. [FR Doc. 2016–29900 Filed 12–16–16; 8:45 am] BILLING CODE 9111–97–P E:\FR\FM\19DER5.SGM 19DER5

Agencies

DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 81, Number 243 (Monday, December 19, 2016)]
[Rules and Regulations]
[Pages 92266-92313]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29900]



[[Page 92265]]

Vol. 81

Monday,

No. 243

December 19, 2016

Part V





Department of Homeland Security





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8 CFR Parts 212, 214, 245, et al.





Classification for Victims of Severe Forms of Trafficking in Persons; 
Eligibility for ``T'' Nonimmigrant Status; Final Rule

Federal Register / Vol. 81 , No. 243 / Monday, December 19, 2016 / 
Rules and Regulations

[[Page 92266]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 212, 214, 245, and 274a

[CIS No. 2507-11; DHS Docket No. USCIS-2011-0010]
RIN 1615-AA59


Classification for Victims of Severe Forms of Trafficking in 
Persons; Eligibility for ``T'' Nonimmigrant Status

AGENCY: U.S. Citizenship and Immigration Services, Department of 
Homeland Security.

ACTION: Interim rule with request for comments.

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SUMMARY: The Department of Homeland Security (DHS) is amending its 
regulations governing the requirements and procedures for victims of 
human trafficking seeking T nonimmigrant status. The Secretary of 
Homeland Security (Secretary) may grant T nonimmigrant status (commonly 
known as a ``T visa'') to aliens who are or were victims of severe 
forms of trafficking in persons, who are physically present in the 
United States on account of such trafficking, who have complied (unless 
under 18 years of age or unable to cooperate due to trauma) with any 
reasonable request by a Federal, State, or local law enforcement agency 
(LEA) for assistance in an investigation or prosecution of acts of 
trafficking in persons or the investigation of other crimes involving 
trafficking, and who would suffer extreme hardship involving unusual 
and severe harm if removed from the United States. In this interim 
rule, DHS is amending its regulations to conform with legislation 
enacted after the initial rule was published in 2002: the Trafficking 
Victims Protection Reauthorization Act of 2003 (TVPRA 2003), the 
Violence Against Women and Department of Justice Reauthorization Act of 
2005 (VAWA 2005), the William Wilberforce Trafficking Victims 
Protection Reauthorization Act of 2008 (TVPRA 2008), and Titles VIII 
and XII of the Violence Against Women Reauthorization Act of 2013 (VAWA 
2013).
    DHS is also streamlining procedures, responding to public comments 
on the 2002 interim final rule, and providing guidance for the 
statutory requirements for T nonimmigrants. The intent is to make sure 
the T nonimmigrant status regulations are up to date and reflect USCIS 
adjudicative experience, as well as the input provided by stakeholders.

DATES: Effective date. This rule is effective January 18, 2017.
    Comment date. Written comments must be submitted on or before 
February 17, 2017. Comments on the form, form instructions, and 
information collection revisions in this interim rule must be submitted 
on or before January 18, 2017.

ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2011-0010, by one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: You may submit comments directly to U.S. 
Citizenship and Immigration Services (USCIS) by email at 
USCISFRComment@uscis.dhs.gov. Include DHS Docket No. USCIS-2011-0010 in 
the subject line of the message.
     Mail: Samantha Deshommes, Chief, Regulatory Coordination 
Division, Office of Policy and Strategy, U.S. Citizenship and 
Immigration Services, Department of Homeland Security, 20 Massachusetts 
Avenue NW., Washington, DC 20529-2140. To ensure proper handling, 
please reference DHS Docket No. USCIS-2011-0010 on your correspondence. 
This mailing address may be used for paper, disk, or CD-ROM 
submissions.
     Hand Delivery/Courier: Samantha Deshommes, Chief, 
Regulatory Coordination Division, Office of Policy and Strategy, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
20 Massachusetts Avenue NW., Washington, DC 20529-2140. Contact 
Telephone Number (202) 272-8377.

FOR FURTHER INFORMATION CONTACT: Elizabeth Dallam, Office of Policy and 
Strategy, U.S. Citizenship and Immigration Services, Department of 
Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529-
2099, telephone (202) 272-8377 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION: This supplementary information section is 
organized as follows:

I. Public Participation
II. Executive Summary
    A. Purpose of the Regulatory Action
    1. Need for the Regulatory Action and How the Action Will Meet 
That Need
    2. Statement of Legal Authority for the Regulatory Action
    B. Summary of the Major Provisions of the Rule
    1. Statutory Changes
    2. Discretionary Changes
    C. Costs and Benefits
III. Background and Legislative Authority
IV. Eligibility and Application Requirements, Procedures, and 
Changes in This Rule
    A. Eligibility Requirements for T Nonimmigrant Classification
    1. Victim of a Severe Form of Trafficking in Persons
    a. Definition of ``Involuntary Servitude''
    b. Performing Labor, Services, or Commercial Sex Is Not 
Necessary
    c. Evidence of Victimization
    2. Physical Presence on Account of Trafficking in Persons
    a. LEA Returns a Victim to the United States
    b. Victim Who Has Been Trafficked Abroad Is Allowed Entry Into 
the United States
    c. Removal of the ``Opportunity To Depart'' Requirement
    d. Evidence of Physical Presence on Account of Trafficking in 
Persons
    3. Compliance With Any Reasonable Request
    a. Totality of Circumstances Test To Determine the 
``Reasonableness'' of LEA Requests
    b. ``Comparably-Situated Crime Victims'' Standard
    c. Proper Standard is the Reasonableness of the LEA Request
    d. Minors Exempt From Compliance With Any Reasonable Request
    e. Evidence of Compliance With Any Reasonable Request
    f. Trauma Exception
    4. Extreme Hardship Involving Unusual and Severe Harm Upon 
Removal
    B. Application Requirements
    1. Filing the Application
    a. Filing Deadline
    b. Form-Related Changes
    c. Proof Required for Family Members of a Minor Applicant
    d. Referral to Law Enforcement and Department of Health and 
Human Services
    2. Initial Evidence
    3. Bona Fide Determinations
    4. Derivative Family Members
    a. Definitions
    b. Eligibility of Certain Family Members
    5. Age-Out Protection of Eligible Family Members
    a. Age-Out Protection for Child Principal To Apply for Eligible 
Family Members
    b. Age-Out Protection for Unmarried Sibling Derivative of Child 
Principal
    c. Age-Out Protection for Child Derivative
    d. Marriage of Eligible Family Members
    e. Evidence for Eligible Family Members
    C. Adjudication and Post-Adjudication
    1. Prohibitions on Use of Information
    a. Applicability of Confidentiality Provisions
    b. Disclosure Required in Relation to Criminal Prosecution
    c. Use of Information on the T Nonimmigrant Status Application
    2. Waivers of Grounds of Inadmissibility
    a. Waiver Authority for T Nonimmigrants
    b. Criminal Grounds of Inadmissibility
    c. Waivers Relating to Adjustment of Status
    d. Waivers of Inadmissibility Grounds Related to the Trafficking 
Victimization
    e. Requesting a Waiver
    3. Decisions
    4. Benefits
    5. Duration of Status
    6. Extension of Status
    a. Extension of Status for Law Enforcement Need
    b. Extension of Status for Exceptional Circumstances

[[Page 92267]]

    c. Extension of Status While an Application for Adjustment of 
Status Is Pending
    7. Waiting List
    8. Revocation
    a. Streamlining Revocation Based on Violation of the Requirement 
of T Nonimmigrant Status
    b. Revocation Based on Information Provided by Law Enforcement
    c. Revocation of Derivative Nonimmigrant Status
    9. Technical Fix for T Nonimmigrants Residing in the CNMI
    D. Filing and Biometric Services Fees
V. Regulatory Requirements
    A. Administrative Procedure Act
    1. Statutorily Required Changes
    2. ProceduraL Changes Only
    3. Logical Outgrowth
    4. Contrary to the Public Interest
    B. Unfunded Mandates Reform Act of 1995
    C. Small Business Regulatory Enforcement Fairness Act of 1996
    D. Executive Orders 12866 and 13563
    1. Summary
    2. Background
    3. Changes Implemented in this Interim Rule
    a. Statutory Provisions
    b. Discretionary Changes
    4. Benefits
    a. Benefits of Statutory Provisions
    b. Benefits of Discretionary Changes
    5. Costs
    a. Costs of Statutory Provisions
    b. Costs of Discretionary Changes
    c. Costs to the Federal Government
    E. Regulatory Flexibility Act
    F. Executive Order 13132
    G. Executive Order 12988
    H. Family Assessment
    I. Paperwork Reduction Act

I. Public Participation

    DHS invites interested persons to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of this 
interim rule. DHS also invites comments that relate to the economic, 
environmental, or federalism effects that might result from this 
interim rule. DHS particularly encourages comments from individuals, 
organizations, and agencies with direct experience handling T 
nonimmigrant cases or issues. Comments that will provide the most 
assistance to DHS in developing these procedures will reference a 
specific portion of the interim rule, explain the reason for any 
recommended change, and include data, information, or authority that 
support such recommended change.
    Instructions: All submissions received must include the agency name 
(U.S. Citizenship and Immigration Services) and DHS Docket No. USCIS-
2011-0010 for this rulemaking. All comments received will be posted 
without change to https://www.regulations.gov, including any personal 
information provided. See the ADDRESSES section above for information 
on how to submit comments. Those wishing to submit anonymous comments 
should do so electronically at https://www.regulations.gov.
    Docket: For access to the docket to read background documents or 
comments received go to https://www.regulations.gov.

II. Executive Summary

A. Purpose of the Regulatory Action

    The T nonimmigrant status regulations--which include eligibility 
criteria, application process, evidentiary standards, and benefits 
associated with the T nonimmigrant classification (commonly known as 
the ``T visa'' \1\)--have been in effect since a 2002 interim rule. New 
Classification for Victims of Severe Forms of Trafficking in Persons; 
Eligibility for ``T'' Nonimmigrant Status, 67 FR 4784 (Jan. 31, 2002) 
(2002 interim rule). Since the publication of that interim rule, the 
public has submitted comments on the regulations and Congress has 
enacted numerous pieces of related legislation. DHS is responding to 
the public comments on the 2002 interim rule, clarifying requirements 
based on experience operating the program for more than 14 years, and 
amending provisions as required by legislation.
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    \1\ T nonimmigrant status is known as the ``T visa'' 
colloquially, however ``T visa'' is not an entirely accurate term in 
light of the statutory scheme. Principal victims granted T-1 
nonimmigrant status may seek derivative T nonimmigrant status for 
certain family members. 8 CFR 214.11(o)(1). Some of these family 
members may reside outside the United States and, if eligible, can 
join the victim in the United States. Before family members with 
approved derivative T nonimmigrant status can enter the United 
States, the family members must first undergo processing with the 
Department of State at a U.S. Embassy or Consulate to obtain a T 
visa abroad. This is known as consular processing. USCIS will decide 
on the basis of the application filed by the principal T-1 
nonimmigrant whether an overseas family member qualifies for 
derivative T nonimmigrant status. The Department of State will then 
separately determine that family member's eligibility to receive a 
visa in order to enter the United States.
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1. Need for the Regulatory Action and How the Action Will Meet That 
Need
    Statutory amendments to the Trafficking Victims Protection Act of 
2000 (TVPA) require that DHS amend and clarify the eligibility and 
application requirements to conform to current law. In addition, DHS 
needs to respond to public comments on the 2002 interim rule. DHS 
accomplishes both actions in this interim rule.
2. Statement of Legal Authority for the Regulatory Action
    The TVPA authorizes various means to combat trafficking in persons, 
including tools to effectively prosecute and punish perpetrators of 
trafficking in persons, and protection to victims of trafficking 
through immigration relief and access to Federal public benefits. See 
Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), 
div. A, TVPA, Public Law 106-386, 114 Stat. 1464 (Oct. 28, 2000), as 
amended by TVPRA 2003, Public Law 108-193, 117 Stat. 2875 (Dec. 19, 
2003); VAWA 2005, Public Law 109-162, 119 Stat. 2960 (Jan. 5, 2006); 
Technical Corrections to VAWA 2005, Public Law 109-271, 120 Stat. 750 
(Aug. 12, 2006); TVPRA 2008, Public Law 110-457, 122 Stat. 5044 (Dec. 
23, 2008), and VAWA 2013, Public Law 113-4, titles viii, xii, 127 Stat. 
54 (Mar. 7, 2013); Justice for Victims of Trafficking Act of 2015 
(JVTA), Public Law 114-22, 129 Stat. 227 (May 29, 2015). The 
Immigration and Nationality Act of 1952 (INA), as amended, permits the 
Secretary to grant T nonimmigrant status to aliens who are or were 
victims of a severe form of trafficking in persons, who have complied 
with any reasonable request by an LEA for assistance in an 
investigation or prosecution of acts of trafficking in persons or the 
investigation of crime where acts of trafficking are at least one 
central reason for the commission of that crime, or who are exempt from 
this compliance requirement, and who would suffer extreme hardship 
involving unusual and severe harm if removed from the United States. 
See INA section 101(a)(15)(T), 8 U.S.C. 1101(a)(15)(T).

B. Summary of the Major Provisions of the Rule

1. Statutory Changes
    The legislative changes to the T nonimmigrant statute addressed in 
this interim rule are as follows:
     Expanding the definition and discussion of LEA to include 
State and local law enforcement agencies (added by VAWA 2005). See INA 
section 101(a)(15)(T)(i)(III)(aa), 8 U.S.C. 1101(a)(15)(T)(i)(III)(aa); 
new 8 CFR 214.11(a).
     Raising the age at which the applicant must comply with 
any reasonable request by an LEA for assistance in an investigation or 
prosecution of acts of trafficking in persons, from 15 years to 18 
years of age (added by TVPRA 2003). See INA section 
101(a)(15)(T)(i)(III)(cc), 8 U.S.C. 1101(a)(15)(T)(i)(III)(cc); new 8 
CFR 214.11(b)(3)(i) and (h)(4)(ii).
     In cases where the applicant is unable, due to physical or 
psychological trauma, to comply with any reasonable request by an LEA, 
exempting the

[[Page 92268]]

applicant from the requirement to comply (added by TVPRA 2008). See INA 
section 101(a)(15)(T)(i)(III)(bb), 8 U.S.C. 1101(a)(15)(T)(i)(III)(bb); 
new 8 CFR 214.11(b)(3)(ii) and (h)(4)(i).
     Expanding the regulatory definition of physical presence 
on account of trafficking to include those whose entry into the United 
States was for participation in investigative or judicial processes 
associated with an act or a perpetrator of trafficking (added by TVPRA 
2008). See INA section 101(a)(15)(T)(i)(II), 8 U.S.C. 
1101(a)(15)(T)(i)(II); new 8 CFR 214.11(b)(2) and (g)(1).
     Allowing principal applicants under 21 years of age to 
apply for derivative T nonimmigrant status for unmarried siblings under 
18 years and parents as eligible derivative family members (added by 
TVPRA 2003). See INA section 101(a)(15)(T)(ii)(I), 8 U.S.C. 
1101(a)(15)(T)(ii)(I); new 8 CFR 214.11(k)(1)(ii).
     Providing age-out protection for a principal applicant's 
eligible family members under 21 years of age (added by TVPRA 2003). 
See INA section 214(o)(4), 8 U.S.C. 1184(o)(4); new 8 CFR 
214.11(k)(5)(ii).
     Providing age-out protection for principal applicants 
under 21 years of age (added by TVPRA 2003). See INA section 214(o)(5), 
8 U.S.C. 1184(o)(5); new 8 CFR 214.11(k)(5)(iii).
     Allowing principal applicants of any age to apply for 
derivative T nonimmigrant status for unmarried siblings under 18 years 
of age and parents as eligible family members if the family member 
faces a present danger of retaliation as a result of the principal 
applicant's escape from a severe form of trafficking or cooperation 
with law enforcement (added by TVPRA 2008). See INA section 
101(a)(15)(T)(ii)(III), 8 U.S.C. 1101(a)(15)(T)(ii)(III); new 8 CFR 
214.11(k)(1)(iii) and (k)(5)(iv).
     Allowing principal applicants of any age to apply for 
derivative T nonimmigrant status for children (adult or minor) of the 
principal's derivative family members if the derivative's child faces a 
present danger of retaliation as a result of the principal's escape 
from a severe form of trafficking or cooperation with law enforcement 
(added by VAWA 2013). See INA section 101(a)(15)(T)(ii)(III), 8 U.S.C. 
1101(a)(15)(T)(ii)(III); new 8 CFR 214.11(k)(1)(iii).
     Permitting all derivative T nonimmigrants, if otherwise 
eligible, to apply for adjustment of status under INA section 245(l), 8 
U.S.C. 1255(l). See new 8 CFR 245.23(b)(2).
     Removing the requirement that eligible family members must 
face extreme hardship if the family member is not admitted to the 
United States or was removed from the United States (removed by VAWA 
2005). See previous INA section 101(a)(15)(T)(ii), 8 U.S.C. 
1101(a)(15)(T)(ii); 8 CFR 214.11(o)(1)(ii)
     Exempting T nonimmigrant applicants from the public charge 
ground of inadmissibility (added by TVPRA 2003). See INA section 
212(d)(13)(A), 8 U.S.C. 1182(d)(13)(A); new 8 CFR 212.16(b).
     Limiting duration of T nonimmigrant status to 4 years but 
providing extensions for LEA need, for exceptional circumstances, and 
for the pendency of an application for adjustment of status (VAWA 2005 
and TVPRA 2008). See INA section 214(o)(7)(B), 8 U.S.C. 1184(o)(7)(B); 
new 8 CFR 214.11(c)(1) and (l).
     Implementing a technical fix to clarify that presence in 
the Commonwealth of the Northern Mariana Islands after being granted T 
nonimmigrant status qualifies toward the requisite physical presence 
requirement for adjustment of status (added by VAWA 2013). See VAWA 
2013, tit. viii, section 809; section 705(c) of the Consolidated 
Natural Resources Act of 2008 (CNRA), Title VII, Public Law 110-229, 
122 Stat. 754 (2008); new 8 CFR 245.23(a)(3)(ii).
     Conforming the regulatory definition of sex trafficking to 
the revised statutory definition in section 103(10) of the TVPA (22 
U.S.C. 7102(10)), as amended by section 108(b) of the JVTA, 129 Stat. 
239. See new 8 CFR 214.11(a).
2. Discretionary Changes
    In addition to the necessary statutory changes, DHS makes the 
following changes and clarifications related to the T nonimmigrant 
classification in this interim rule:
     Specifies how USCIS will exercise its waiver authority 
with respect to criminal inadmissibility grounds; new 8 CFR 
212.16(b)(3).
     Discontinues the practice of weighing evidence as primary 
and secondary in favor of an ``any credible evidence'' standard; 8 CFR 
214.11(f); new 8 CFR 214.11(d)(2)(ii) and (3).
     Provides guidance on the definition of ``severe form of 
trafficking in persons'' where an individual has not performed labor or 
services, or a commercial sex act; new 8 CFR 214.11(f)(1).
     Removes the current regulatory ``opportunity to depart'' 
requirement for those who escaped traffickers before law enforcement 
became involved; 8 CFR 214.11(g)(2).
     Addresses situations where trafficking has occurred 
abroad, but the applicant can potentially meet the physical presence 
requirement; new 8 CFR 214.11(g)(3).
     Eliminates the requirement that an applicant provide three 
passport-style photographs; 8 CFR 214.11(d)(2)(ii); new 8 CFR 
214.11(d)(4).
     Removes the filing deadline for applicants victimized 
prior to October 28, 2000; 8 CFR 214.11(d)(4).
     Announces forthcoming updates to the forms used to apply 
for T nonimmigrant status.
     Updates the regulation to reflect the creation of DHS, and 
to implement current standards of regulatory organization, plain 
language, and USCIS efforts to transform its customer service 
practices.

C. Costs and Benefits

    With this interim rule, DHS incorporates in its regulations several 
statutory provisions associated with the T nonimmigrant status that 
have been enacted since 2002 and that DHS already has been 
implementing. While codifying these changes in the DHS regulations will 
not result in additional quantitative costs or benefits, ensuring that 
DHS regulations are consistent with applicable legislation will provide 
qualitative benefits. In addition, DHS will implement changes made 
necessary by VAWA 2013, and other discretionary changes. DHS estimates 
the changes made in this interim rule will result in the following 
costs:
     A per application opportunity cost for the T-1 principal 
alien of $33.92 to complete and submit the Application for Family 
Member of T-1 Recipient, Form I-914 Supplement A, in order to apply for 
children (adult or minor) of the principal's derivative family members 
if the derivative's child faces a present danger of retaliation as a 
result of the principal's escape from a severe form of trafficking and/
or cooperation with law enforcement. The children of the principal's 
derivative relatives will be admitted under the T-6 classification. DHS 
has no basis to project the population of children of derivative family 
members that may be eligible for the new T-6 nonimmigrant 
classification.
     An individual total cost of $89.70 for applicants who 
become eligible to apply for principal T-1 nonimmigrant status when the 
filing deadline for those trafficked before October 28, 2000 is 
removed. The total cost includes the opportunity cost associated with 
filing the Application for T Nonimmigrant Status, Form I-914, and the 
time and travel costs associated with submitting

[[Page 92269]]

biometrics. If the applicant includes the Declaration of Law 
Enforcement Officer for Victim of Trafficking in Persons, Form I-914 
Supplement B in the application, there is an opportunity cost of 
$149.70 for the law enforcement worker that completes that form. DHS 
has no way of predicting how many individuals physically present in the 
United States may now be eligible for T-1 nonimmigrant status as a 
result of removing the filing deadline.
     An individual total cost of $89.70 for those applicants 
trafficked abroad that will now become eligible to apply for T 
nonimmigrant status due to DHS's expanded interpretation of the 
physical presence requirement. As previously described, the total cost 
includes both the opportunity of time cost and estimated travel cost 
incurred with filing Form I-914 and submitting biometrics. If the 
applicant includes the Declaration of Law Enforcement Officer for 
Victim of Trafficking in Persons, Form I-914 Supplement B in the 
application, there is an opportunity cost of $149.70 for the law 
enforcement worker that completes that form. DHS is unable to project 
the size of this new eligible population.
    Based on recent filing volumes, DHS estimates total cost savings of 
$56,130 for T nonimmigrant applicants and their eligible family members 
as a result of no longer being required to submit three passport-style 
photographs with their T nonimmigrant applications. In addition, the 
interim rule will provide various qualitative benefits for victims of 
trafficking, their eligible family members, and law enforcement 
agencies investigating trafficking incidents. These qualitative 
benefits result from making the T nonimmigrant classification more 
accessible, reducing some burden involved in applying for this status 
in certain cases, and clarifying the process by which DHS adjudicates 
and administers the T nonimmigrant benefit.

D. Public Comments

    DHS welcomes public comment on all aspects of this interim final 
rule.

III. Background and Legislative Authority

    Congress created the T nonimmigrant status in the TVPA. See Victims 
of Trafficking and Violence Protection Act of 2000 (VTVPA), div. A, 
TVPA, Public Law 106-386, 114 Stat. 1464 (Oct. 28, 2000). Congress has 
since amended the TVPA, including the T nonimmigrant status provisions, 
several times: TVPRA 2003, Public Law 108-193, 117 Stat. 2875 (Dec. 19, 
2003); VAWA 2005, Public Law 109-162, 119 Stat. 2960 (Jan. 5, 2006); 
Technical Corrections to VAWA 2005, Public Law 109-271, 120 Stat. 750 
(Aug. 12, 2006); TVPRA 2008, Public Law 110-457, 122 Stat. 5044 (Dec. 
23, 2008); VAWA 2013, Public Law 113-4, titles viii, xii, 127 Stat. 54 
(Mar. 7, 2013); JVTA, Public Law 114-22, 129 Stat. 227 (May 29, 2015).
    The TVPA and subsequent reauthorizing legislation provide various 
means to combat trafficking in persons, including tools to effectively 
prosecute and punish perpetrators of trafficking in persons, and 
protect victims of trafficking through immigration relief and access to 
federal public benefits. The T nonimmigrant status is one type of 
immigration relief available to victims of severe forms of trafficking 
in persons who assisted LEAs in the investigation or prosecution of the 
perpetrators of these crimes.
    The INA permits the Secretary to grant T nonimmigrant status to 
individuals who are or were victims of a severe form of trafficking in 
persons, who have complied with any reasonable request by an LEA for 
assistance in an investigation or prosecution of crime involving acts 
of trafficking in persons (or who are under 18 years of age or are 
unable to cooperate due to physical or psychological trauma).\2\ See 
INA Section 101(a)(15)(T)(i)(I), (III), 8 U.S.C. 1101(a)(15)(T)(i)(I), 
(III). Applicants for T nonimmigrant status must be physically present 
in the United States, American Samoa, or the Commonwealth of the 
Northern Mariana Islands, or at a port-of-entry thereto, on account of 
trafficking in persons, including physical presence on account of the 
alien having been allowed entry into the United States for 
participation in investigative or judicial processes associated with an 
act or a perpetrator of trafficking. See INA section 
101(a)(15)(T)(i)(II), 8 U.S.C. 1101(a)(15)(T)(i)(II). In addition, an 
applicant must demonstrate that he or she would suffer extreme hardship 
involving unusual and severe harm if removed from the United States. 
See INA section 101(a)(15)(T)(i)(IV), 8 U.S.C. 1101(a)(15)(T)(i)(IV). T 
nonimmigrant status allows eligible individuals to remain in the United 
States for a period of not more than 4 years (with the possibility for 
extensions), receive work authorization, receive federal public 
benefits, and apply for derivative status for certain eligible family 
members. See INA section 101(a)(15)(T)(ii), 8 U.S.C. 
1101(a)(15)(T)(ii); INA section 214(o), 8 U.S.C. 1184(o); 8 U.S.C. 
1641(c)(4).
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    \2\ The primary victim of trafficking is also referred to as the 
``principal T nonimmigrant'' or ``principal alien'' and receives T-1 
nonimmigrant status, if eligible. The principal alien may be 
permitted to apply for certain family members who are referred to as 
``eligible family members'' or ``derivative T nonimmigrants'' and 
when approved those family members receive T-2, T-3, T-4, T-5, or T-
6 nonimmigrant status. The term derivative is used in this context 
because the family member's eligibility derives from that of the 
primary nonimmigrant.
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    On January 31, 2002, the former Immigration and Naturalization 
Service (INS) \3\ published an interim final rule in the Federal 
Register titled New Classification for Victims of Severe Forms of 
Trafficking in Persons; Eligibility for ``T'' Nonimmigrant Status 
implementing the T nonimmigrant status provisions of the TVPA. 67 FR 
4784. INS outlined the eligibility criteria, application process, 
evidentiary standards, and benefits associated with the T nonimmigrant 
status. Id. Most of the provisions in this rule have been in effect 
since the 2002 interim rule and have been the subject of extensive 
public comment.\4\ In this rule, DHS is responding to the 14 public 
submissions with comments on multiple provisions of the 2002 interim 
rule. No comments were received regarding the procedural aspects of the 
2002 interim rule or the good cause arguments put forth in the rule for 
bypassing notice and comment.
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    \3\ Various functions formerly performed by the INS, or 
otherwise vested in the Attorney General, were transferred to DHS in 
March 2003. See 6 U.S.C. 251, 271(b), 557; 6 U.S.C. 542 note; 8 
U.S.C. 1103(a)(1), (g), 8 U.S.C. 1551 note. Even though INS 
published the 2002 interim rule, this rule refers to DHS because DHS 
is now the regulatory actor.
    \4\ Since the publication of the 2002 interim rule, DHS has 
amended the core regulatory provision relating to T nonimmigrant 
status, 8 CFR 214.11, multiple times. Most of these changes have 
been minor conforming changes as parts of other actions. See, e.g., 
Removal of the Standardized Request for Evidence Processing 
Timeframe, 72 FR 19100, 19107 (Apr. 17, 2007); Adjustment of Status 
to Lawful Permanent Resident for Aliens in T or U Nonimmigrant 
Status, 73 FR 75558 (Dec. 12, 2008); Application of Immigration 
Regulations to the Commonwealth of the Northern Mariana Islands, 74 
FR 55738 (Oct. 28, 2009).
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    As noted above, DHS also welcomes additional input by stakeholders 
in response to this action. As explained further in the Administrative 
Procedure Act section of this rule, DHS is publishing this rule as an 
interim final rule and requesting additional comment on all aspects of 
this rulemaking.

IV. Eligibility and Application Requirements, Procedures, and Changes 
in This Rule

    DHS provides a summary of the changes made in this rule in Section 
II.B. of this preamble above. In this section, DHS describes the 
changes in greater detail. The discussion is organized generally in the 
same order as the relevant regulatory provisions in this interim rule, 
and proceeds as follows:

[[Page 92270]]

    A. Eligibility Requirements for T Nonimmigrant Classification 
(including core eligibility factors such as victimization, physical 
presence on account of trafficking in persons, and extreme hardship 
involving unusual and severe harm upon removal),
    B. Application Requirements (include filing deadlines, bona fide 
determinations, and processes and eligibility for derivative family 
members),
    C. Adjudication and Post-Adjudication (including waivers of 
inadmissibility, confidentiality requirements, and duration of status), 
and
    D. Filing and Biometric Services Fees.
    Throughout the discussion, DHS addresses and responds to the public 
comments received in connection with the 2002 interim rule.

A. Eligibility Requirements for T Nonimmigrant Classification

    There are four statutory eligibility requirements for T 
nonimmigrant status. See INA section 101(a)(15)(T), 8 U.S.C. 
1101(a)(15)(T). To be eligible, the applicant must meet the following 
criteria:
     The applicant must be or have been a victim of a severe 
form of trafficking in persons, as defined in 22 U.S.C. 7102 (section 
103 of the TVPA);
     The applicant must be physically present in the United 
States, American Samoa, the Commonwealth of the Northern Mariana 
Islands (CNMI),\5\ or at a port-of-entry thereto, on account of such 
trafficking, including physical presence based on the applicant having 
been allowed to enter the United States to participate in investigative 
or judicial processes associated with an act or a perpetrator of 
trafficking; and
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    \5\ The federalization of the CNMI immigration law took place on 
November 28, 2009. See Consolidated Natural Resources Act of 2008 
(CNRA), Public Law 110-229, title VII, 122 Stat. 754 (2008). This 
effectively replaced the CNMI's immigration laws with the INA and 
other applicable United States immigration laws, with few 
exceptions.
---------------------------------------------------------------------------

     The applicant must meet one of the following criteria:
    [ssquf] Has complied with any reasonable request for assistance in 
the Federal, State, or local investigation or prosecution of acts of 
trafficking or the investigation of a crime where acts of trafficking 
are at least one central reason for the commission of that crime; or
    [ssquf] Is under 18 years of age; or
    [ssquf] Is unable to cooperate with a request due to physical or 
psychological trauma; and
     The applicant would suffer extreme hardship involving 
unusual and severe harm upon removal from the United States.
    Below DHS addresses each of these requirements in turn.
1. Victim of a Severe Form of Trafficking in Persons
    First, an individual applying for classification as a T 
nonimmigrant must demonstrate that he or she is or was a victim of a 
severe form of trafficking in persons. See INA section 
101(a)(15)(T)(i)(I), 8 U.S.C. 1101(a)(15)(T)(i)(I). In the 2002 interim 
rule, DHS defined ``victim of a severe form of trafficking in persons'' 
consistent with the statutory definitions in TVPA section 103(9) and 
(14), 22 U.S.C. 7102(9), (14). Under the interim rule, an applicant 
must show that he or she is a victim of one or more of the following:
     Sex trafficking in which a commercial sex act is induced 
by force, fraud, or coercion;
     Sex trafficking in which the person induced to perform 
such an act is under the age of 18; 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.
    See 8 CFR 214.11(a); see also TVPA section 103(9), 22 U.S.C. 
7102(9).
    DHS received public comments on the definition of ``victim of a 
severe form of trafficking in persons,'' and responds as follows:
     DHS clarifies that the term ``involuntary servitude,'' as 
used in 22 U.S.C. 7102(9), encompasses the use of psychological 
coercion. See 8 CFR 214.11(a).
     DHS clarifies that an individual need not perform labor, 
services, or a commercial sex act to meet the definition of a ``victim 
of a severe form of trafficking in persons.'' New 8 CFR 214.11(f)(1).
     DHS explains how a victim can meet the evidentiary burden 
to show victimization, even when the victim did not perform labor, 
services or a commercial sex act.
    In order to simplify the regulatory text, DHS used and defined the 
term ``victim'' in this rule as shorthand to refer to ``an alien who is 
or has been subject to a severe form of trafficking in persons,'' as 
defined by TVPA section 103 (22 U.S.C. 7102). See 8 CFR 214.11(a).
a. Definition of ``Involuntary Servitude''
    DHS received four comments about the definition of ``involuntary 
servitude'' in 8 CFR 214.11(a). Commenters maintained that the 
definition appeared to be too narrow because it cited United States v. 
Kozminski, 487 U.S. 931, 952 (1988). In Kozminski, the Supreme Court 
had occasion to construe ``involuntary servitude'' as used in the 
criminal provisions at 18 U.S.C. 241 (conspiracy to interfere with free 
exercise of constitutional rights, including Thirteenth Amendment 
guarantee against involuntary servitude) and 1584 (knowingly and 
willfully holding to involuntary servitude . . . any other person for 
any term). The Court, considering the historical context of the term as 
used in those criminal provisions, held that involuntary servitude 
excluded compulsion by psychological coercion.
    The commenters stated that Congress intended the definition of 
involuntary servitude as used in 22 U.S.C. 7102(9) and defined in part 
in 22 U.S.C. 7102(6), to go beyond the Kozminski construction, and 
recommended striking the citation from the definition. We agree. In the 
2002 interim rule, DHS did not intend to exclude psychological coercion 
from the definition of involuntary servitude. The citation to Kozminski 
in the definition was qualified by the word ``includes,'' and therefore 
did not limit the definition of involuntary servitude by excluding 
psychological coercion. Additionally, in the 2002 interim rule's 
preamble, DHS specifically said that the TVPA definition of ``forced 
labor'' was meant to ``expand[] the definition of involuntary servitude 
contained in Kozminksi.'' 67 FR 4784, at 4786. To avoid the potential 
for confusion, DHS is removing the citation to Kozminski from the 
definition of ``involuntary servitude.''
b. Performing Labor, Services, or Commercial Sex Is Not Necessary
    In this interim rule, DHS is clarifying that an individual need not 
actually perform labor, services, or a commercial sex act to meet the 
definition of a ``victim of a severe form of trafficking in persons.'' 
See new 8 CFR 214.11(f)(1).
    In the 2002 interim rule, DHS explained that it interpreted the 
term ``severe form of trafficking in persons'' to require a particular 
means (force, fraud, or coercion) and a particular end (sex 
trafficking, involuntary servitude, peonage, debt bondage, or slavery). 
See 67 FR at 4786 (construing the statutory definition at 22 U.S.C. 
7102(9) and (14)). However, DHS did not discuss how it would address 
cases involving the means of force, fraud, or coercion and the intended 
ends of sex trafficking, involuntary servitude, peonage, debt bondage, 
or slavery, where those illicit

[[Page 92271]]

ends are never realized. This would include, for example, a situation 
where the victim was recruited and came to the United States through 
force, fraud or coercion for the purpose of a commercial sex act, but 
the victim was rescued or escaped before performing a commercial sex 
act.
    The definition of ``severe form of trafficking in persons'' at 22 
U.S.C. 7102(9) includes the phrase ``for the purpose of'' subjection to 
a form of human trafficking; i.e., the applicant may establish that he 
or she was recruited, transported, harbored, provided, or obtained 
through force, fraud, or coercion for the purpose of subjecting him or 
her to a commercial sex act, involuntary servitude, peonage, debt 
bondage, or slavery.\6\ The statutory definition does not require a 
victim to have actually performed labor, services, or a commercial sex 
act to be considered a victim of a severe form of trafficking, for T 
nonimmigrant status eligibility purposes.
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    \6\ Note that the labor trafficking prong of the statutory 
definition of ``severe forms of trafficking in persons'' at 22 
U.S.C. 7102(9)(B) directly uses the phrase ``for the purpose of,'' 
whereas the sex trafficking prong of the statutory definition does 
not. The sex trafficking prong, however, incorporates the definition 
of ``sex trafficking'' at 22 U.S.C. 7102(10) (``The term `sex 
trafficking' means the recruitment, harboring, transportation, 
provision, obtaining, patronizing, or soliciting of a person for the 
purpose of a commercial sex act''), which employs the phrase ``for 
the purpose of.'' Although the statute requires the commercial sex 
act to be ``induced,'' the statute does not expressly provide that 
the inducement must be successful in order for a victim to satisfy 
the definition, nor does the term ``induce'' necessarily require 
that the desired end be achieved. See, e.g., United States v. 
Murrell, 368 F.3d 1283, 1287 (11th Cir. 2004) (``We have previously 
held that the term `induce' in [18 U.S.C.] Sec.  2422 is not 
ambiguous and has a plain and ordinary meaning. . . . By negotiating 
with the purported father of a minor, Murrell attempted to stimulate 
or cause the minor to engage in sexual activity with him. 
Consequently, Murrell's conduct fits squarely within the definition 
of `induce.' '') (citations omitted); cf. NLRB v. Associated 
Musicians of N.Y., 226 F.2d 900, 904 (2d Cir. 1955) (holding that 
``common understanding of the meaning'' of ``induce,'' as used in 
the National Labor Relations Act, does not require the inducement to 
be successful). Moreover, the two prongs of the statutory definition 
should be read to fit harmoniously as part of ``a symmetrical and 
coherent statutory scheme.'' FDA v. Brown & Williamson Tobacco 
Corp., 529 U.S. 120, 133 (2000). We can discern neither a logical 
reason nor any congressional design to designate inchoate labor 
trafficking offenses as ``severe forms of trafficking in persons,'' 
but not so designate inchoate sex trafficking offenses. To the 
extent there is ambiguity in the statutes, it is reasonable for the 
Department to adopt the more expansive conception of ``victim'' for 
purposes of the T visa regime given the protection and humanitarian 
aims of the statutory scheme. Cf., e.g., INS v. Cardoza-Fonseca, 480 
U.S. 421, 449 (1987) (construing ``any lingering ambiguities'' in 
Refugee Act of 1980 so as to ``increase [ ] . . . flexibility'' in 
protecting refugees in light of statute's humanitarian aims); Flores 
v. USCIS, 718 F.3d 548, 554 (6th Cir. 2013) (observing that court's 
more expansive reading of temporary protected status (TPS) provision 
is supported by clear congressional intent ``to protect a class of 
people . . . due to an extraordinary circumstance''); Akhtar v. 
Burzynski, 384 F.3d 1193, 1200 (9th Cir. 2004) (observing that 
``[i]n determining congressional intent'' when seeking to resolve 
ambiguities in LIFE Act (``V visa'' program), ``we should adhere to 
the general rule of construction that when the legislature enacts an 
ameliorative rule designed to forestall harsh results, the rule will 
be interpreted and applied in an ameliorative fashion'') (quotations 
marks omitted).
---------------------------------------------------------------------------

    The TVPA did not elaborate on the term ``for the purpose of 
subjection to'' a form of human trafficking. We therefore consider 
common definitions of the key terms:
     Purpose: ``something set up as an object or an end to be 
attained.'' See Merriam-Webster Online Dictionary, 2011, https://merriam-webster.com. Also defined as ``an objective, goal, or end; 
specifically the business activity that a corporation is chartered to 
engage in.'' See Black's Law Dictionary (7th ed. 2000).
     Subjection: ``the act of subjecting someone to 
something.'' See Black's Law Dictionary (7th ed. 2000). ``Subjecting'' 
is also defined as ``bringing under control or dominion'' or ``causing 
or forcing to undergo or endure.'' See Merriam-Webster Online 
Dictionary, 2011, https://merriam-webster.com.
    The concept of ``for the purpose of'' speaks to the process of 
attaining an object or end or the intention to attain something, but 
not the end result. The inclusion of the ``for the purpose of'' 
language may reasonably be construed as encompassing situations where 
labor or commercial sex act has not occurred.
    Furthermore, Congress amended the federal criminal code to punish 
attempts to violate any trafficking-related criminal provision in the 
same manner as a completed act of trafficking would be punished. See 
TVPA section 112; 18 U.S.C. 1594. The criminal code thus specifically 
allows for attempts and conspiracy to commit trafficking to be 
prosecuted. Id. The T nonimmigrant status was intended to assist LEAs 
and provide a tool to, in part, allow for prosecution and stop the 
traffickers from continuing to enslave human beings. See TVPA section 
102. Congress intended to provide an incentive for victims to report 
these crimes by providing for an immigration benefit connected to 
assistance to LEAs. Id.
    If victims who have been recruited, harbored, transported, 
provided, or obtained for the purposes of trafficking (or patronized or 
solicited in the case of sex trafficking) and have not yet performed 
any labor, services, or commercial sex acts are not eligible for T 
nonimmigrant status, Congress's intent in the TVPA to prosecute 
traffickers would be thwarted. Such an interpretation would hinder 
victims from coming forward to report trafficking to LEAs and assist 
with investigations or prosecutions. This could amount to a chilling 
effect on LEAs' ability to investigate and prosecute trafficking-
related crimes. Since the 2002 interim rule, USCIS has seen far fewer 
filings than expected. However, based on the Federal Government 
estimates, the small number of filings is not due to a correspondingly 
small number of victims in the United States. See U.S. Department of 
State, Trafficking in Persons Report (June 2010). Victims already often 
find it difficult to report trafficking and work with law enforcement; 
excluding an entire class of potential victims from T nonimmigrant 
eligibility could thwart the purpose of the visa and hinder 
prosecutions. A narrow interpretation would also seem to punish a 
victim who was rescued by an LEA or escaped on their own before any 
labor, services or commercial sex acts were performed. That result is 
illogical and inconsistent with Congressional intent. Therefore, those 
who have been recruited, harbored, transported, provided, or obtained 
for the purposes of trafficking (or patronized or solicited in the case 
of sex trafficking) are eligible for T nonimmigrant status in this 
rule, irrespective of the actual performance of any labor, services or 
commercial sex acts.
    Below, DHS includes a discussion of how victims can meet the 
evidentiary burden to show victimization when they did not perform 
labor, services or a commercial sex act.
c. Evidence of Victimization
    An applicant can meet the victimization requirement in a number of 
ways. In the 2002 interim rule, DHS required the submission of primary 
or secondary evidence to establish victimization. See 8 CFR 214.11(f). 
Primary evidence of victimization included an LEA endorsement on the 
Declaration of a Law Enforcement Officer for Victim of Trafficking in 
Persons, Form I-914 Supplement B to the Application for T Nonimmigrant 
Status,\7\ Form I-914, and a grant of Continued Presence from U.S. 
Immigration and Customs Enforcement (ICE) under 28 CFR 1100.35. 
Secondary evidence included any credible evidence that demonstrated 
that the applicant is or has been a victim of a

[[Page 92272]]

severe form of trafficking in persons, including evidence that 
explained the nonexistence or unavailability of the primary evidence.
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    \7\ Currently USCIS Form I-914. Available online at https://www.uscis.gov/files/form/i-914.pdf.
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    As discussed later in this preamble, DHS received comments 
suggesting that the interim rule made the LEA endorsement mandatory 
because it was ``primary'' evidence. Commenters also thought the LEA 
endorsement created an imbalance between the needs of law enforcement 
and the rights of victims.
    DHS amends the regulations in this rule to discontinue giving the 
two types of evidence different and unequal weight. See new 8 CFR 
214.11(d)(3). Under new 8 CFR 214.11(d)(2)(ii), USCIS will accept any 
credible evidence of victimization, including but not limited to an LEA 
endorsement or a grant of Continued Presence. Following this change, 
USCIS will review applications where there is no LEA endorsement or 
grant of Continued Presence and give equal weight to other credible 
evidence based on the TVPA goals of protecting victims and enhancing 
law enforcement's ability to investigate and prosecute human 
trafficking. See TVPA section 102. By making the LEA endorsement just 
one type of evidence of victimization, DHS clarifies a misconception of 
the LEA role in the T nonimmigrant process. An LEA does not determine 
if the victim meets the ``severe form of trafficking definition'' under 
Federal law. That is a determination that is made by USCIS.
    Except in instances of sex trafficking involving victims under 18 
years of age, severe forms of trafficking in persons must involve both 
a particular means (force, fraud, or coercion) and a particular end 
(sex trafficking, involuntary servitude, peonage, debt bondage, or 
slavery) or intended particular end. See new 8 CFR 214.11(f)(1). The 
applicant must demonstrate both elements, regardless of the evidence 
submitted.
    As noted above, if the victim has not yet actually performed labor, 
services or a commercial sex act, he or she must establish that the 
trafficker acted ``for the purpose of'' subjecting the victim to sex 
trafficking, involuntary servitude, peonage, debt bondage, or slavery. 
See new 8 CFR 214.11(f)(1). The clearest evidence of this purpose would 
be that the victim did in fact perform labor, services, or commercial 
sex acts. In the absence of that evidence, a victim can submit any 
credible evidence from any reliable source that shows the purpose for 
which the victim was recruited, transported, harbored, provided or 
obtained. Examples of evidence that may be submitted to demonstrate the 
trafficker's purpose include, but are not limited to: Correspondence 
with the trafficker, evidence from an LEA, trial transcripts, court 
documents, police reports, news articles, and affidavits. See new 8 CFR 
214.11(f)(1).
2. Physical Presence on Account of Trafficking in Persons
    Second, an alien applying for T nonimmigrant status must 
demonstrate physical presence in the United States, American Samoa, the 
Commonwealth of the Northern Mariana Islands, or at a port of entry 
thereto, on account of trafficking. See INA section 
101(a)(15)(T)(i)(II), 8 U.S.C. 1101(a)(15)(T)(i)(II).
    In this interim rule, DHS makes the following changes and 
clarifications:
     If a victim departed from the United States but the victim 
is allowed reentry into the United States to participate in an 
investigative or judicial process \8\ associated with an act or a 
perpetrator of trafficking, USCIS will consider the victim to have met 
the physical presence requirement. New 8 CFR 214.11(g)(1)(v) and (2).
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    \8\ Congress used different language in INA section 
101(a)(15)(T)(i)(II), 8 U.S.C. 1101(a)(15)(T)(i)(II), than in INA 
section 214(o)(7)(B)(i), 8 U.S.C. 1184(o)(7)(B)(i), which 
specifically requires the LEA to ``certify that the presence of the 
alien in the United States is necessary to assist in the 
investigation or prosecution of such activity.'' Congress could have 
inserted ``prosecution'' in INA section 101(a)(15)(T)(i)(II), 8 
U.S.C. 1101(a)(15)(T)(i)(II), as it did in INA section 
101(a)(15)(T)(i)(III)(aa), 8 U.S.C. 1101(a)(15)(T)(i)(III)(aa), and 
INA section 214(o)(7)(B)(i), 8 U.S.C. 1184(o)(7)(B)(i), but did not. 
Instead it used the broader concept of ``judicial processes.'' DHS 
does not interpret the phrase ``judicial processes'' as referring 
only to criminal investigations or prosecutions, nor will DHS 
require LEA ``sponsorship.'' For example, if DHS were to parole a 
victim to pursue civil remedies associated with an act or 
perpetrator of trafficking, see, e.g., 18 U.S.C. 1595, the applicant 
may potentially meet this physical presence requirement. DHS does 
not interpret this provision to require the victim enter the United 
States through an LEA sponsored entry, such as Significant Public 
Benefit Parole, although practically use of this parole may be the 
most common way these applicants enter the United States.
---------------------------------------------------------------------------

     If the trafficking occurred abroad, but the victim is 
allowed entry into the United States for the purpose of participating 
in an investigative or judicial process associated with an act or a 
perpetrator of trafficking, USCIS will consider the victim to have met 
the physical presence requirement. New 8 CFR 214.11(g)(1)(v) and (3).
     If the victim escaped a trafficker before an LEA became 
involved in the matter, DHS will no longer require the victim to show 
that he or she did not have a clear chance to leave the United States, 
or an ``opportunity to depart.'' New 8 CFR 214.11(g)(1).
     Where a victim is allowed entry into the United States to 
participate in an investigative or judicial process associated with an 
act or a perpetrator of trafficking, the victim must show documentation 
of entry through a legal means such as parole and must submit evidence 
that the entry is for the purpose of participation in investigative or 
judicial processes associated with an act or perpetrator of 
trafficking. New 8 CFR 214.11(g)(3). DHS discusses each change in turn 
below.
a. LEA Returns a Victim to the United States
    DHS received six comments suggesting that if a victim leaves the 
United States and then returns to the United States for an 
investigation or prosecution, USCIS should consider the victim to have 
met the physical presence requirement. DHS agrees that victims who left 
but who are allowed valid reentry into the United States for the 
purposes of an investigation or prosecution meet the physical presence 
requirement. Moreover, TVPRA 2008 amended section 101(a)(15)(T)(i)(II) 
of the INA, 8 U.S.C. 1101(a)(15)(T)(i)(II), to include physical 
presence on account of the victim having been allowed to enter the 
United States to participate in investigative or judicial processes 
associated with an act or perpetrator of trafficking. See TVPRA 2008 
section 201(a)(1)(C). DHS codifies this change in this rule at new 8 
CFR 214.11(b)(2) and 214.11(g)(1)(v).
    In the 2002 interim rule, DHS presumed that individuals who have 
traveled outside of the United States and then returned are not here on 
account of trafficking in persons. To overcome this presumption, an 
applicant must show that his or her presence in the United States is 
the result of continued victimization or a new incident of a severe 
form of trafficking in persons. See 8 CFR 214.11(g)(3). DHS clarifies 
in this rule that the presumption does not apply when the victim who 
previously left the United States is allowed reentry in order for the 
victim to participate in investigative or judicial processes associated 
with an act or a perpetrator of trafficking. See new 8 CFR 
214.11(g)(2)(iii).
b. Victim Who Has Been Trafficked Abroad Is Allowed Entry Into the 
United States
    The physical presence language introduced in TVPRA 2008 broadens 
the physical presence requirement. It applies not only to valid reentry 
to the United States as discussed above, but also to initial entry to 
the United States to participate in investigative or judicial processes 
associated with trafficking.

[[Page 92273]]

For these types of cases, DHS has identified two primary examples where 
a victim may qualify for T nonimmigrant status:
     When trafficking occurred in the United States or the 
victim was physically present in the United States on account of 
trafficking, but the victim has left the United States and is allowed 
valid reentry into the United States for participation in investigative 
or judicial processes associated with trafficking; or
     When trafficking occurred outside the United States, but 
the victim is allowed valid entry into the United States in order to 
participate in investigative or judicial processes associated with 
trafficking.
    DHS anticipates limited types of cases when trafficking occurred 
outside the United States that could lead to eligibility for T 
nonimmigrant status. One type could be when criminal activities occur 
outside the United States, but the relevant statutes provide for 
extraterritorial jurisdiction, and the activity involved would meet the 
Federal definition of ``severe forms of trafficking in persons.'' 
Statutes establishing extraterritorial jurisdiction generally require 
some nexus between the criminal activity and the United States' 
interests. For example, under 18 U.S.C. 2423(c), the United States has 
jurisdiction to investigate and prosecute cases involving citizens or 
nationals who engage in illicit sexual conduct outside the United 
States, such as sexually abusing a minor. This offense is referred to 
as ``sex tourism.''
    Sex tourism often interplays with crimes of human trafficking. 
According to the Federal definition of ``severe forms of trafficking in 
persons,'' where a minor (i.e., a person under the age of 18) engages 
in a commercial sex act, that minor meets the definition without having 
to show force, fraud, or coercion. See TVPA section 103(9), 22 U.S.C. 
7102(9). The TVPA definition of ``commercial sex act'' is any sex act 
on account of which anything of value is given to or received by any 
person. TVPA section 103(4), 22 U.S.C. 7102(4). Violations of the sex 
tourism statute could involve commercial sex acts involving a minor. 
Such a minor would also meet the Federal definition of a victim of 
``severe forms of trafficking in persons,'' and if the victim is 
allowed valid entry into the United States in order to participate in 
investigative or judicial processes associated with trafficking, the 
victim may qualify for T nonimmigrant status.
    Even absent extraterritorial jurisdiction, there are other cases 
which could lead to eligibility for T nonimmigrant status when the 
trafficking occurred outside the United States. DHS understands that 
the nature of human trafficking crimes often means that traffickers 
operate internationally and may commit crimes in a number of countries. 
If the victim is allowed valid entry into the United States in order to 
participate in investigative or judicial processes, the victim could 
potentially qualify for T nonimmigrant status. DHS notes that the 
victim would need to meet every eligibility requirement in order to 
qualify for T nonimmigrant status and DHS adjudicates every application 
on a case-by-case basis.
    Even before the statutory expansion of the physical presence 
requirement, it was possible that trafficking that occurred abroad 
could qualify a victim for T nonimmigrant status. INA section 
101(a)(15)(T)(i)(II); 8 U.S.C. 1101(a)(15)(T)(i)(II), allows victims at 
a port of entry to qualify, so long as they can show that their 
presence at the port is on account of trafficking. This means that the 
recruitment, harboring, transportation, provision, or obtaining of a 
person for a severe form of trafficking that occurs abroad and results 
in the person's presence at a port of entry of the United States 
qualifies a victim for T nonimmigrant status. INA section 
101(a)(15)(T)(i)(II); 8 U.S.C. 1101(a)(15)(T)(i)(II). DHS notes that 
not every instance of trafficking occurring abroad would qualify a 
victim for T nonimmigrant status. The victim must establish that he or 
she is now in the United States or at a port of entry on account of 
trafficking or the victim was allowed valid entry into the United 
States to participate in a trafficking-related investigation or a 
prosecution or other judicial process. If a victim of trafficking 
abroad makes his or her way to the United States and the reason is not 
related to or on account of the trafficking and the victim was not 
allowed valid entry to participate in an investigative or judicial 
process related to trafficking or a trafficker, this victim cannot meet 
the physical presence requirement and would not be eligible for T 
nonimmigrant status on account of that trafficking incident.
c. Removal of the ``Opportunity To Depart'' Requirement
    DHS is also amending the former ``opportunity to depart'' aspect of 
the physical presence requirement. DHS provided in the 2002 interim 
rule that the general physical presence requirement can cover 
applicants who are currently being trafficked, were recently liberated 
from trafficking, or were subject to trafficking in the past. For those 
who escaped a trafficker before an LEA became involved, DHS required in 
the 2002 interim rule that the applicant show that, evaluated in light 
of the applicant's circumstances, he or she did not have a clear chance 
to leave the United States, or an ``opportunity to depart.'' 8 CFR 
214.11(g)(2). This requirement was intended to ensure that the 
applicant's continuing presence in the United States is directly 
related to the trafficking.
    Most commenters on the subject of physical presence objected to 
USCIS requiring a victim liberated from traffickers to demonstrate that 
his or her continuing presence in the United States is directly related 
to the trafficking. Commenters also opposed the requirement that a 
victim who escaped the traffickers and remains in the United States 
must show he or she had no clear chance to leave, asserting it is 
burdensome, vague, and may frustrate congressional intent to protect 
victims.
    Although DHS has tempered this requirement by looking at the 
opportunity to depart in light of the individual's circumstances such 
as trauma, injury, and lack of resources, DHS agrees that this 
requirement is unnecessary and may be counterproductive. DHS therefore 
is removing the requirement that an applicant must show that he or she 
did not have a clear chance to leave (i.e., ``opportunity to depart'') 
the United States.
    Notwithstanding this change, every applicant must still establish 
that they are physically present in the United States on account of 
trafficking. Section 101(a)(15)(T)(i)(II) of the INA, 8 U.S.C. 
1101(a)(15)(T)(i)(II), requires that a victim be physically present 
``on account of such trafficking.'' Unlike the requirement of 
victimization, which is phrased in both the present and past tense, the 
physical presence requirement is only phrased in the present tense. DHS 
interprets this language to require a consideration of the victim's 
current situation, and a consideration of whether the victim can 
establish that his or her current presence in the United States is on 
account of trafficking. A victim who is liberated from trafficking is 
not exempt from the statutory requirement to show that his or her 
presence is on account of trafficking. Applicants who have not 
performed labor or services, or a commercial sex act also need to 
demonstrate physical presence in the United States on account of 
trafficking.

[[Page 92274]]

d. Evidence of Physical Presence on Account of Trafficking in Persons
    For those victims demonstrating physical presence on account of 
``the alien having been allowed entry into the United States,'' DHS 
interprets this language to require the victim's entry through a lawful 
means. See INA section 101(a)(15)(T)(i)(II), 8 U.S.C. 
1101(a)(15)(T)(i)(II); new 8 CFR 214.11(g)(3). The victim must provide 
evidence of the lawful entry. New 8 CFR 214.11(g)(3).
    DHS does not interpret the phrase ``judicial processes'' as 
referring only to criminal investigations or prosecutions, nor will DHS 
require LEA ``sponsorship.'' For example, if DHS were to parole a 
victim to pursue civil remedies associated with an act or perpetrator 
of trafficking, see, e.g., 18 U.S.C. 1595, the applicant may 
potentially meet this physical presence requirement. DHS does not 
interpret this provision to require the victim to enter the United 
States through an LEA sponsored entry, such as Significant Public 
Benefit Parole (SPBP).
    Practically, SPBP may be the most common way these applicants enter 
the United States, because United States law enforcement may 
investigate or prosecute the trafficking crime, and law enforcement 
could sponsor an individual for SPBP for access to United States courts 
that would likely have jurisdiction over the related trafficking 
incidents. In these cases, the victim is in the United States on 
account of trafficking because DHS facilitated the victim's entry into 
the United States for participation in an investigation or prosecution.
    The lawful entry must be connected to the victim's participation in 
an investigative or judicial process associated with an act or 
perpetrator of trafficking. The victim must include evidence of the 
lawful entry and of how he or she entered to participate in an 
investigative or judicial process associated with an act or perpetrator 
of trafficking. Evidence could include a Form I-914 Supplement B, or 
other evidence from an LEA to describe the victim's participation. The 
victim can also provide other credible evidence, such as a personal 
statement, or attach supporting documentation.
    When the physical presence requirement is met by the victim's entry 
into the United States for participation in investigative or judicial 
processes associated with an act or perpetrator of trafficking, the 
victim must still establish his or her eligibility for all the other 
requirements for T nonimmigrant status. The compliance with the any 
reasonable request for assistance requirement would not be met simply 
by the entry into the United States with the intent to assist the LEA, 
but by the victim actually complying with any reasonable request by an 
LEA or meeting an exception to the compliance requirement. The 
requirement to comply with any reasonable request is an ongoing 
requirement, meaning that applicants must continue to cooperate with 
the LEA from the time of their initial application through the time 
they apply for adjustment of status to lawful permanent resident. See 
new 8 CFR 214.11(h)(1) and (m)(2)(ii)-(iii); 8 CFR 245.23(a)(6)(i). 
Failure to comply with any reasonable request from the LEA can result 
in revocation of the T nonimmigrant status. See new 8 CFR 
214.11(m)(2)(ii)-(iii). However, if the LEA chooses not to pursue an 
investigation or prosecution, that decision will not affect the 
applicant's eligibility so long as the applicant complied with any 
reasonable LEA request.
    DHS notes that victims must also meet the other eligibility 
requirements, including the requirement that the victim establish that 
she or he would suffer extreme hardship involving unusual and severe 
harm upon removal from the United States. 8 CFR 214.11(i). The victim 
must include evidence of extreme hardship following the guidelines laid 
out in 8 CFR 214.11(i). One example of where this requirement may be 
met when the victimization occurred abroad is if the traffickers abroad 
are now threatening the victim or the victim's family because the 
victim is no longer under the trafficker's control or because the 
victim is cooperating with an LEA or judicial process in the United 
States. DHS will make ``extreme hardship'' determinations in accordance 
with the law and DHS policy, as discussed below in this preamble.
3. Compliance With Any Reasonable Request
    Third, a victim is required to comply with any reasonable request 
for assistance in a Federal, State, or local investigation or 
prosecution of acts of trafficking in persons, or the investigation of 
a crime where an act of trafficking in persons is at least one central 
reason for the commission of that crime. See INA section 
101(a)(15)(T)(i)(III)(aa), 8 U.S.C. 1101(a)(15)(T)(i)(III)(aa); new 8 
CFR 214.11(b)(3). A ``reasonable request for assistance'' is defined as 
``a reasonable request made by an LEA or prosecutor to a victim of a 
severe form of trafficking in persons to assist an LEA in the 
investigation or prosecution of acts of trafficking in persons or the 
investigation of a crime where an act of trafficking in persons is at 
least one central reason for the commission of that crime.'' 8 CFR 
214.11(a).
    In this rule, DHS makes the following changes and clarifications:
     Expanding the factors that DHS may consider in the 
totality of the circumstances test to determine the ``reasonableness'' 
of LEA requests. New 8 CFR 214.11(h)(2).
     Clarifying that DHS will continue to use a ``comparably 
situated crime victims'' standard to determine reasonableness, rather 
than a ``subjective trafficked persons'' standard.
     Clarifying that the proper standard to determine 
``reasonableness'' is whether the LEA request was reasonable, not 
whether the victim's refusal was unreasonable. New 8 CFR 
214.11(m)(2)(ii).
     Raising the age at which the applicant must comply with 
any reasonable request by an LEA for assistance in an investigation or 
prosecution of acts of trafficking in persons from 15 years to 18 years 
of age. New 8 CFR 214.11(h)(4)(ii).
     According no special weight to an LEA endorsement and 
moving to an ``any credible evidence'' standard. New 8 CFR 
214.11(h)(3).
     In cases where the applicant is unable, due to physical or 
psychological trauma, to cooperate with any reasonable request by an 
LEA, exempting the applicant from the requirement to comply. New 8 CFR 
214.11(h)(4)(i).
    DHS discusses each change in turn below.
a. Totality of the Circumstances Test To Determine the 
``Reasonableness'' of LEA Requests
    In the 2002 interim rule, DHS accounted for situations in which a 
request made to a victim was not reasonable. See 8 CFR 214.11(a). Under 
that rule, the reasonableness of a request depended on the totality of 
the circumstances, taking into account general law enforcement and 
prosecutorial practices, the nature of victimization, and the specific 
circumstances of the victim, including fear, severe traumatization 
(both mental and physical), and the age and maturity of young victims. 
Id.
    In the 2002 interim rule, DHS sought specific comments on this 
requirement. Of the total 191 public comments received, 37 comments 
related to some aspect of this issue. Fifteen commenters commended DHS 
for adopting a totality

[[Page 92275]]

of the circumstances test to determine the reasonableness of an LEA 
request and for balancing law enforcement needs and the protection of 
victims. Some commenters appreciated the comprehensiveness of the 
totality of the circumstances test. Some commenters also provided a 
broad, non-exhaustive list of factors to be considered when 
implementing the totality of the circumstances test, including fear of 
retribution against family members outside the United States for whom 
foreign law enforcement cannot or will not provide protection. Six 
commenters also thought the regulations were too vague regarding how 
long a victim must comply with any reasonable requests for assistance. 
The commenters urged DHS to take into account circumstances that may 
delay or limit an applicant's compliance with LEA requests when 
determining whether an applicant meets the compliance requirement. 
These circumstances could include responses to trauma and psychological 
issues, delays necessary to ensure the safety of the applicant or the 
applicant's family members, delays or difficulties accessing social 
services, and the time it takes an applicant to build trust with law 
enforcement.
    DHS appreciates the public's input with respect to the ``reasonable 
requests for assistance'' requirement. DHS strives to implement the 
aims of the TVPA while striking the proper balance between the law 
enforcement need to investigate and prosecute and the need to ensure 
that victims are not overburdened. DHS includes in this rule almost all 
of the commenters' suggested factors to consider when evaluating the 
reasonableness of an LEA request, including factors related to time. 
See new 8 CFR 214.11(h)(2). DHS will evaluate the totality of the 
circumstances using a broad range of factors, and is not limited by 
those listed in this rule. Id.
b. ``Comparably-Situated Crime Victims'' Standard
    In the 2002 interim rule, DHS noted that it is generally reasonable 
for an LEA to ask a victim of a severe form of trafficking in persons 
similar things an LEA would ask other comparably-situated crime 
victims, thus articulating a ``comparably-situated crime victims'' 
standard. 67 FR 4784, at 4788. Some commenters suggested, however, that 
in the application of the test, DHS could go further by replacing the 
``comparably-situated crime victims'' standard with a ``subjective 
trafficked person'' standard that would take into account the unique 
situation of the particular trafficking victim. DHS has determined, 
however, that a ``subjective trafficked persons'' standard could 
actually be narrower than the existing ``comparably-situated crime 
victims.'' 67 FR 4784, at 4788. DHS also notes that many factors of the 
totality of the circumstances test are unique to trafficking victims.
    The definition of ``severe forms of trafficking in persons'' can be 
limiting in that elements of force, fraud, and coercion are required. 
By adopting a ``subjective trafficked persons'' standard, USCIS would 
be bound by the federal trafficking definition. The existing 
comparably-situated crime victim standard can go beyond the scope of 
the federal trafficking definition to victims of other crimes, such as 
domestic violence. Law enforcement practice regarding sensitivity to 
domestic violence victims is long standing and has evolved over the 
course of several decades. DHS did not limit who it envisioned as a 
comparably-situated crime victim, intending to keep the evaluation of 
reasonableness as broad as possible. After considering the comments, 
DHS has determined that it will retain the reasonableness test and use 
the comparably-situated crime victim standard in its application, as it 
properly focuses on the protection of victims and provides more 
flexibility than the alternative suggested by commenters.
    In addition, DHS notes that when comments on the 2002 interim rule 
were submitted, Congress had not yet added the trauma exemption from 
compliance with any reasonable requests. In part because of the trauma 
exemption that Congress enacted following the 2002 interim rule and 
that is discussed later in this Preamble, DHS sees no need to amend 
current practice.
c. Proper Standard Is the Reasonableness of the LEA Request
    DHS received six comments asserting that USCIS inconsistently 
implements the statutory requirement that a victim must comply with 
``any reasonable request for assistance'' by sometimes trying to 
determine whether the victim's refusal to assist was reasonable, 
instead of whether the request itself was reasonable. The commenters 
pointed out that the 2002 interim rule discusses the victim's refusal 
to assist an LEA at page 4788 under, ``What is the Law Enforcement 
Agency Endorsement?'' and at 8 CFR 214.11(s)(1)(iv), Grounds for notice 
of intent to revoke. Commenters also suggested the word ``reasonable'' 
should be added to Part D (Cooperation of Victim) checklist item of the 
Declaration of Law Enforcement Officer for Victim of Trafficking in 
Persons, Form I-914 Supplement B. The item would then read that the 
applicant ``has complied with reasonable requests for assistance . . . 
.''
    DHS agrees that the statute focuses on whether an LEA request was 
reasonable and not whether a victim unreasonably refused to assist. 
(DHS notes, however, that whether a request is reasonable can depend on 
victim-specific factors, such as whether the victim and the victim's 
family are sufficiently safe or emotionally able to assist law 
enforcement at any given time.) DHS is amending the revocation 
standards to reflect the statutory language. New 8 CFR 
214.11(m)(2)(iii). DHS has also revised Declaration of Law Enforcement 
Officer for Victim of Trafficking in Persons, Form I-914 Supplement B 
to the Application for T Nonimmigrant Status, Form I-914, to add the 
term ``reasonable'' to refer to requests made to a victim.
d. Minors Exempt From Compliance With Any Reasonable Request
    DHS received eight comments specific to minors and the requirement 
for compliance with any reasonable request. These commenters proposed 
that DHS consider the applicant's age and any developmental delays for 
minors above the age of 15. Persons under the age of 15 were not 
required to comply with any reasonable requests for assistance under 
the 2002 interim rule. The commenters requested special consideration 
for those between the ages of 15 and 18.
    Since the 2002 interim rule, the statute has been amended to exempt 
from this requirement children under 18 years of age and those who 
cannot comply with a request for assistance due to physical or 
psychological trauma. See INA section 101(a)(15)(T)(i)(III)(bb) and 
(cc), 8 U.S.C. 1101(1)(15)(T)(i)(III)(bb) and (cc); new 8 CFR 
214.11(b)(3)(i) and (ii). Therefore, there is no longer a population of 
15 to 18 year olds to which this comment would apply. See new 8 CFR 
214.11(b)(3)(i) and 214.11(h)(4)(ii).
e. Evidence of Compliance With Any Reasonable Request
    Under the 2002 interim rule, evidence of compliance was weighed as 
primary evidence or secondary evidence, similar to the evidentiary 
requirement for victimization. See 8 CFR 214.11(h). An LEA endorsement 
was primary evidence of compliance with reasonable requests. Id. 
Secondary evidence was any credible evidence submitted to explain the 
nonexistence or unavailability of the primary evidence and to 
demonstrate

[[Page 92276]]

compliance with any reasonable request. Id.
    DHS received 10 comments relating to the creation of an LEA 
endorsement, an optional part of an application for T nonimmigrant 
status. Commenters believed that in practice the endorsement is 
mandatory since it is primary evidence, and that it creates an 
imbalance between the needs of law enforcement and the rights of 
victims. Commenters asserted that the use of an LEA endorsement is not 
specifically required by statute. Furthermore, commenters believed that 
Congress did not intend for the LEA endorsement to be required because 
an endorsement was required in the U nonimmigrant statute concerning 
victims of certain qualifying criminal activity under INA section 
214(p)(1), which includes human trafficking, but not specifically 
required in the T nonimmigrant statute. Commenters also suggested 
allowing State or local LEAs to issue an endorsement in addition to 
Federal LEAs.
    DHS is amending the regulations with this rule to discontinue the 
``primary'' and ``secondary'' evidentiary distinctions in favor of an 
``any credible evidence'' standard. See new 8 CFR 214.11(d)(2)(ii) and 
(3). Under new 8 CFR 214.11(h)(3), USCIS will accept any credible 
evidence of compliance with reasonable requests, including, but not 
limited to, an LEA endorsement. See new 8 CFR 214.11(d)(3). DHS notes 
that under the ``any credible evidence'' standard, the absence of an 
LEA endorsement will not adversely affect an applicant who can meet the 
evidentiary burden with the submission of other evidence of sufficient 
reliability and relevance.
    Even though the statute creating T nonimmigrant status did not 
explicitly require an LEA endorsement, DHS considers such an 
endorsement a useful and convenient form of evidence, among other types 
of credible evidence. In TVPRA 2003, Congress added section 214(o)(6) 
of the INA, 8 U.S.C. 1184(o)(6), which instructs USCIS to consider 
statements from State and local LEAs that a victim has complied with 
any reasonable requests for assistance in investigations or 
prosecutions where trafficking appears to have been involved. See TVPRA 
2003 section 4(b)(2)(B). TVPRA 2003 also added State and local LEAs to 
the compliance requirement at section 101(a)(15)(T)(i)(III)(aa) of the 
INA, 8 U.S.C. 1101(a)(15)(T)(i)(III)(aa). Id. TVPRA 2003 endorsed and 
codified the LEA endorsement process by directing USCIS to consider 
statements from State and local LEAs. See TVPRA 2003 section 
4(b)(2)(B), INA section 214(o)(6), 8 U.S.C. 1184(o)(6).
    In creating the T nonimmigrant status, Congress intended to provide 
law enforcement with a tool to combat and prosecute human trafficking 
and to protect victims of human trafficking. DHS intends to equally 
balance the goals of law enforcement and victim protection by moving to 
an ``any credible evidence'' standard. DHS has amended the evidentiary 
standard as described above.
    This change to an ``any credible evidence'' standard also clarifies 
some misconceptions of the LEA role in the T nonimmigrant process. 
Signing an endorsement does not grant T nonimmigrant status, nor does 
it lead to automatic approval. Only USCIS can grant T nonimmigrant 
status after reviewing evidence and completing security and background 
checks. An ``any credible evidence'' standard may assist LEAs in better 
understanding their role in the T nonimmigrant process. This new 
standard may also result in LEAs being more likely to sign 
endorsements, increasing the likelihood that T nonimmigrant status will 
be utilized as the law enforcement tool that it is intended to be. Even 
in the absence of an LEA endorsement, in order to determine whether a 
victim meets the ``compliance with any reasonable request'' 
requirement, DHS may contact the LEA that is involved in the case at 
its discretion to document the victim's compliance (or inability to 
comply) with reasonable requests for assistance.
    Consistent with DHS' adoption of an any credible evidence standard, 
this rule also expands the definition of ``Law Enforcement Agency 
(LEA)'' to allow for any Federal, State or local law enforcement 
agency, prosecutor, judge, labor agency, or other authority that has 
responsibility for the detection, investigation, and/or prosecution of 
severe forms of trafficking in persons to complete an LEA endorsement. 
New 8 CFR 214.11(d)(2); 8 CFR 214.11(h)(3). Federal LEAs include but 
are not limited to: U.S. Attorneys' Offices, Civil Rights Division, 
Criminal Division, U.S. Marshals Service, Federal Bureau of 
Investigation (Department of Justice); U.S. Immigration and Customs 
Enforcement (ICE), U.S. Customs and Border Protection (CBP); Diplomatic 
Security Service (Department of State); and U.S. Department of Labor. 
State and local LEAs include but are not limited to: Police 
departments, sheriff's offices, district attorney's offices, human 
rights commissions, departments of labor, and child protective 
services. An agency that has the responsibility to detect severe forms 
of trafficking in persons may be an LEA even if the agency does not 
investigate or prosecute acts of trafficking.
    Further, commenters suggested that the act of filing an application 
for T nonimmigrant status amounts to contacting law enforcement and DHS 
should require no additional action. At a minimum, commenters asked 
USCIS to ensure that Federal LEAs issue LEA endorsements without undue 
delay if a prosecution does not proceed as originally charged, a 
prosecution moves forward for a lesser offense, or a State or local 
prosecution proceeds in lieu of a Federal prosecution.
    Since the regulations were promulgated, INS was dissolved and its 
responsibilities transferred to several components of DHS. Unlike the 
Department of Justice (DOJ) or law enforcement components within DHS, 
such as ICE, USCIS has no authority to investigate or prosecute 
trafficking. Therefore, applying for T nonimmigrant status with USCIS 
is not the same as contacting an LEA to report a trafficking crime. DHS 
cannot assure applicants that LEAs will issue endorsements, but has 
clarified with this rule that a formal investigation or prosecution is 
not required in order for an LEA to complete an endorsement. See new 8 
CFR 214.11(d)(3)(i). DHS has created awareness materials and training 
for LEAs that describe the LEA role in the process and emphasize that a 
formal investigation or prosecution is not required to complete an 
endorsement.
    DHS is removing language that described how to obtain an LEA 
endorsement if the victim has not had contact with an LEA. See former 8 
CFR 214.11(f)(4). That provision directed applicants to contact the DOJ 
hotline to file a complaint and be referred to an LEA. This level of 
specificity is overly-detailed for regulations and it does not provide 
sufficient flexibility to adapt to changes in the future. Since the 
publication of the 2002 regulations, DHS and many other Federal 
agencies and nongovernmental partners have engaged in various public 
education campaigns and posted information on Web sites, which are 
better vehicles than regulations for conveying this type of guidance.
    Finally, the 2002 interim rule created a requirement that the LEA 
endorsement be signed by a supervising official responsible for the 
detection, investigation or prosecution of severe forms of trafficking 
in persons. See 8 CFR 214.11(f)(1). This interim final rule maintains 
that requirement at new 8 CFR 214.11(d)(3)(i). USCIS did not receive 
any comments on this requirement in connection with the

[[Page 92277]]

2002 interim rule. More recently, however, USCIS has received public 
feedback on a similar requirement in the U nonimmigrant status process. 
USCIS will consider any changes related to the U nonimmigrant status 
process in a separate rulemaking.
f. Trauma Exception
    Legislation enacted since the publication of the 2002 interim rule 
exempts victims who cannot cooperate with an LEA request due to 
physical or psychological trauma from compliance with the any 
reasonable request requirement. See INA section 
101(a)(15)(T)(i)(III)(bb), 8 U.S.C. 1101(a)(15)(T)(i)(III)(bb); new 8 
CFR 214.11(b)(3)(ii). DHS adds this statutory change in this rule and 
provides guidance on how an applicant can demonstrate the requisite 
trauma. New 8 CFR 214.11(h)(4)(i). DHS welcomes comments on how it 
should evaluate whether an applicant cannot comply with a request for 
cooperation from an LEA due to trauma. DHS will require that an 
applicant submit an affirmative statement describing the trauma, and 
any other credible evidence. Other supporting evidence may include a 
signed attestation as to the victim's physical or psychological 
indicators of trauma from a person qualified to make such 
determinations in the course of his or her job, such as a medical 
professional, social worker, or victim advocate, or any medical, 
psychological, or other records that are relevant to the trauma. See 
INA section 101(a)(15)(T)(i)(III)(bb), 8 U.S.C. 
1101(a)(15)(T)(i)(III)(bb); new 8 CFR 214.11(h)(4)(i). In order to show 
that the person providing the signed attestation is qualified to make 
such a determination in the course of his or her job, the applicant 
could provide a description of the person's qualifications or education 
or a description of the person's contact and experience with the 
applicant.
    Although a victim's affidavit alone may suffice to satisfy the 
victim's evidentiary burden, USCIS encourages applicants to submit 
additional evidence that will assist them in establishing the trauma 
exception from the general requirement that they comply with any 
reasonable LEA request for assistance. In order to determine whether a 
victim meets the trauma exception, DHS may contact the LEA that is 
involved in the case at its discretion to document the victim's 
inability to assist in the law enforcement process. See new 8 CFR 
214.11(h)(4)(i). In these trauma exception cases, the applicant is not 
required to have had contact with an LEA, including reporting the 
trafficking. In those cases with no LEA contact, DHS will not contact 
an LEA because there will not be an LEA involved with the applicant's 
case.
    Congress instructed DHS to consult with DOJ as appropriate when 
adjudicating the trauma exception from compliance with reasonable LEA 
requests. See INA section 101(a)(15)(T)(i)(III)(bb), 8 U.S.C. 
1101(a)(15)(T)(i)(III)(bb). USCIS already collaborates with DOJ on 
certain T nonimmigrant matters and it will follow a similar process for 
the trauma exception. USCIS may consult with DOJ regarding the trauma 
exception when the underlying criminal case is being handled by DOJ.
4. Extreme Hardship Involving Unusual and Severe Harm Upon Removal
    The fourth and final eligibility requirement for T nonimmigrant 
status is that the applicant would suffer extreme hardship involving 
unusual and severe harm upon removal from the United States. See INA 
section 101(a)(15)(T)(i)(IV), 8 U.S.C. 1101(a)(15)(T)(i)(IV); new 8 CFR 
214.11(b)(4). When evaluating whether removal would result in such 
extreme hardship, USCIS considers a number of factors and uses an ``any 
credible evidence'' standard. See 8 CFR 214.11(i)(3); new 8 CFR 
214.11(d)(5).
    In this rule, DHS clarifies two points regarding the extreme 
hardship requirement based on public comment:
     Minors are not exempt from the extreme hardship 
requirement.
     The applicant bears the burden of proof for the extreme 
hardship requirement.
    DHS discusses these in turn below.
    Nine commenters suggested a rule that minors would always suffer 
extreme hardship involving unusual and severe harm on removal.
    Congress did not exempt minors from the extreme hardship 
requirement. See INA section 101(a)(15)(T)(i)(IV), 8 U.S.C. 
1101(a)(15)(T)(i)(IV). In contrast, Congress did exempt minors from 
compliance with reasonable LEA requests. See INA section 
101(a)(15)(T)(i)(III)(cc), 8 U.S.C. 1101(a)(15)(T)(i)(III)(cc). As 
noted above, Federal law also defines ``severe forms of trafficking in 
persons'' differently with respect to victims under 18 years old than 
with respect to victims 18 years and older. See 22 U.S.C. 7102(9)(A). 
Consistent with the different treatment of minors with regard to 
certain eligibility criteria in the statute, DHS will not adopt a per 
se rule that minors would suffer extreme hardship. USCIS, however, 
considers an applicant's age, maturity, and personal circumstances 
(among other factors) when evaluating the extreme hardship requirement. 
See new 8 CFR 214.11(i)(2).
    One commenter stated that it is unrealistic to place the burden of 
proof on the applicant to show extreme hardship. This comment appears 
to be based on a lack of general understanding of USCIS immigration 
benefit processing. The applicant bears the burden of proving he or she 
is eligible to receive any immigration benefits requested; the 
government is not required to prove an applicant's ineligibility. See 
INA section 291, 8 U.S.C. 1361; Matter of Chawathe, 25 I&N Dec. 369, 
375 (AAO 2010); Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966); 8 CFR 
103.2(b)(1). The applicant may document his or her extreme hardship 
through a personal statement or other evidence. New 8 CFR 214.11(i)(3). 
USCIS can consider relevant country condition reports and any other 
public or private sources of information, when appropriate. Id. By 
allowing such a broad ``any credible evidence'' standard, including the 
applicant's own statement, USCIS is recognizing and taking into account 
difficulties applicants may encounter in obtaining certain documents.

B. Application Requirements

1. Filing the Application
    An applicant must submit a complete Application for T Nonimmigrant 
Status, Form I-914, in accordance with the form instructions. See new 8 
CFR 214.11(d)(1). DHS is making the following changes and 
clarifications in this rule:
     Removing the filing deadline.
     Amending the related forms to reflect public comments.
     Continuing to require proof of identity and relationship 
for family members of minor applicants. New 8 CFR 214.11(k)(3).
     Amending the law enforcement referral language to account 
for the creation of DHS. New 8 CFR 214.11(o).
    DHS discusses each of these in turn.
a. Filing Deadline
    DHS required anyone victimized prior to October 28, 2000, to apply 
for T nonimmigrant status before January 31, 2003. 8 CFR 214.11(d)(4). 
DHS received seven comments against the adoption of this filing 
deadline. Commenters noted that Congress did not impose a deadline and 
further noted T nonimmigrant status is meant for a person who is or has 
been a victim of severe form of trafficking in persons. Commenters also

[[Page 92278]]

thought the deadline would hinder victims from coming forward and 
receiving protection, as well as LEA efforts to combat trafficking.
    DHS acknowledges that Congress did not impose a filing deadline. At 
the time of the 2002 interim rule, DHS anticipated a large volume of 
applications for T nonimmigrant status. The deadline was intended to 
prevent application backlogs. T nonimmigrant application volume has not 
reached expected levels. To protect as many victims as possible, DHS is 
removing the deadline in this interim rule. As of January 18, 2017, 
USCIS will accept applications regardless of when the applicant was 
victimized.
b. Form-Related Changes
    DHS received 11 specific comments about particular fields on the 
Application for T Nonimmigrant Status, Form I-914 and the Application 
for Family Member of T-1 Recipient, Form I-914 Supplement A. Commenters 
asked USCIS to change a question on victimization to allow for the past 
tense, remove a question on public benefits, and add a safe address for 
the eligible family members of an approved T-1 nonimmigrant.
    USCIS has updated the Application for T Nonimmigrant Status, Form 
I-914, and Application for Family Member of T-1 Recipient, Form I-914 
Supplement A, several times since the publication of the 2002 interim 
rule. The current version of the form allows victimization in the past 
tense. Forms I-914 and Supplement A for T nonimmigrant derivatives 
contain a safe address. In addition, the application no longer contains 
a question about public benefits. In the Paperwork Reduction Act (PRA) 
section of this rule, DHS requests public comments on the revised 
Application for T Nonimmigrant Status, Form I-914; Application for 
Family Member of T-1 Recipient, Form I-914 Supplement A; and 
Declaration of Law Enforcement Office for Victim of Trafficking in 
Persons, Form I-914 Supplement B. 44 U.S.C. 3507. DHS is renaming the 
Application for Family Member of T-1 Recipient, Form I-914 Supplement 
A. DHS is removing the phrase ``immediate family member'' because, as 
explained in this preamble, the derivative categories have been 
statutorily expanded to include family members who are not 
traditionally thought of as ``immediate family members''
    Four comments suggested that USCIS should return incomplete forms 
to the applicant with a rejection notice and allow an applicant to re-
file using the process USCIS established for VAWA self-petitioners. 
USCIS is not aware of the process for VAWA self-petitioners to which 
the commenter is referring. Nonetheless, 8 CFR 103.2(a) requires 
benefit requests to be executed and filed in accordance with the form 
instructions and provides that a benefit request that is not executed 
may be rejected. Accordingly, USCIS properly returns substantially 
incomplete forms (including U nonimmigrant petitions and VAWA self-
petitions) to the petitioner, who is instructed in the rejection notice 
that they may correct the deficiencies that are noted and refile their 
request.
c. Proof Required for Family Members of a Minor Applicant
    One commenter also asserted that the standards for proving identity 
and eligibility for eligible family members of a minor principal are 
too burdensome and recommended approving the eligibility of family 
members of a minor principal regardless of the incomplete application. 
DHS declines to accept the commenter's proposal because all applicants 
for immigration benefits generally must submit all required initial 
evidence, and supporting documentation, with an application completed 
according to form instructions. 8 CFR 103.2(a). There are already 
allowances in regulations if original documentation to prove age and 
identity are not available. 8 CFR 103.2(b)(2) (permitting the 
submission of secondary evidence to overcome the unavailability of 
primary evidence, and affidavits to overcome the unavailability of both 
primary and secondary evidence).
    In addition, many eligible family members are outside the United 
States and need to be processed by the Department of State (DOS) at a 
United States embassy or consulate in order to receive a T visa to 
apply for admission to the United States. These eligible family members 
must prove identity, age, and relationship during consular processing 
according to DOS standards. DHS does not believe it would be beneficial 
to applicants for DHS to relax the standard USCIS requires to prove 
identity because that may result in a situation where USCIS approves a 
Form I-914, but DOS will not grant a T visa for entry to the United 
States.
d. Referral to Law Enforcement and Department of Health and Human 
Services
    One commenter also recommended that a filing from a victim under 18 
years of age should trigger a proactive investigation by law 
enforcement and experts in child protective services. USCIS cannot 
initiate this type of investigation because USCIS is not a law 
enforcement agency, but the 2002 interim rule contained provisions for 
referring cases to investigators. See 8 CFR 214.11(v). DHS is amending 
this language to account for the creation of DHS and will instruct 
USCIS officers who come into contact with a possible victim who is not 
already working with an LEA to refer the case to ICE officials 
responsible for victim protection, trafficking investigations and 
prevention, and deterrence, as appropriate. See new 8 CFR 214.11(o).
    Furthermore, child protective services are generally under the 
jurisdiction of States, and USCIS cannot require States to investigate 
claims of crimes or abuse against children. TVPRA 2008 vested 
responsibility for the care and custody of unaccompanied alien children 
with the U.S. Department of Health and Human Services (HHS).\9\ See 
TVPRA 2008 section 235(b)(1), 8 U.S.C. 1232(b)(1). Federal agencies 
must notify HHS upon apprehension or discovery of an unaccompanied 
alien child or any claim or suspicion that an individual in custody is 
under 18 years of age. See TVPRA 2008 section 235(b)(2), 8 U.S.C. 
1232(b)(2). TVPRA 2008 also provided that federal agencies would notify 
HHS to facilitate the provision of public benefits to trafficking 
victims. Minors are eligible to receive federally funded benefits and 
services to the same extent as a refugee as soon as they are identified 
by HHS as a possible victim of trafficking, unlike adults who are 
eligible for public benefits only upon a grant of continued presence by 
DHS under 28 CFR 1100.35, a bona fide determination, or approval of T 
nonimmigrant status. Federal officials also must notify HHS upon 
discovering that a person under the age of 18 may be a victim of a 
severe form of trafficking in persons to facilitate provision of 
interim assistance to the minor victim. See TVPRA 2008 section 
212(a)(2), 22 U.S.C. 7105(b)(1)(H). Upon receiving a T nonimmigrant 
status application from a minor, USCIS will notify HHS in order for the 
minor to be advised of public benefits that may be available as a minor 
victim of trafficking. See new 8 CFR 214.11(d)(1)(iii).
---------------------------------------------------------------------------

    \9\ An unaccompanied alien child is defined as one who has no 
lawful immigration status in the United States, has not attained 18 
years of age, and has no parent or legal guardian in the United 
States or no parent or legal guardian in the United States available 
to provide care and physical custody. 6 U.S.C. 279(g)(2).

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[[Page 92279]]

2. Initial Evidence
    All applicants for immigration benefits generally must submit all 
required initial evidence, and supporting documentation, with an 
application completed according to form instructions. 8 CFR 103.2(a). 
DHS is amending what constitutes acceptable initial evidence that must 
accompany the application for T nonimmigrant status. See new 8 CFR 
214.11(d)(2). DHS will allow the following initial evidence:
     A signed statement in the applicant's own words describing 
the victimization and cooperation with any LEA reasonable request for 
assistance or applicable exemptions from cooperation with such an LEA 
request, and any other eligibility requirements;
     Evidence that the applicant is or has been a victim of a 
severe form of trafficking in persons;
     Evidence that the applicant meets the physical presence 
requirement;
     Evidence of any one of the following:
    [ssquf] The applicant has complied with any reasonable request for 
assistance in a Federal, State, or local investigation or prosecution 
of crime where acts of trafficking are at least one central reason for 
the commission of that crime;
    [ssquf] The applicant is under 18 years of age; or
    [cir] The applicant is unable to cooperate with a reasonable 
request due to physical or psychological trauma;
     Evidence that the applicant would suffer extreme hardship 
involving unusual and severe harm if removed from the United States; 
and
     If the applicant is inadmissible, an Application for 
Advance Permission to Enter as Nonimmigrant, Form I-192, and supporting 
evidence to explain the inadmissibility.
    As discussed above, DHS is removing the provisions requiring USCIS 
to weigh evidence as primary or secondary, and will accept any credible 
evidence to demonstrate each eligibility requirement for T nonimmigrant 
status. See new 8 CFR 214.11(d)(2)(ii). USCIS will determine the 
credibility and weight of evidence at its sole discretion. See new 8 
CFR 214.11(d)(5). As is the case in all other immigration benefits, the 
applicant bears the burden of establishing eligibility. Id.
3. Bona Fide Determinations
    Current regulations provide for USCIS to conduct an initial review 
of each T nonimmigrant status application package to determine if the 
application is a bona fide application. An application will be 
determined to be bona fide if the application is complete and ready for 
adjudication. Among other requirements, the application must include 
biometrics, background checks, and prima facie evidence for each 
eligibility requirement. See 8 CFR 214.11(k). In conjunction with this 
pre-adjudication bona fide determination review, USCIS may grant the 
applicant deferred action when the application for T nonimmigrant 
status is bona fide, which allows the applicant to request employment 
authorization. See Memorandum from Stuart Anderson, Executive Associate 
Commissioner, Office of Policy and Planning, INS, Deferred Action for 
Aliens with Bona Fide Applications for T Nonimmigrant Status (May 8, 
2002).\10\
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    \10\ Available for review in the rulemaking docket for this rule 
(DHS Docket No. USCIS-2011-0010) at https://www.regulations.gov.
---------------------------------------------------------------------------

    One commenter recommended that USCIS make a bona fide determination 
and grant deferred action within 90 days of the receipt of the 
application.
    Since 2002, USCIS has received fewer applications for T 
nonimmigrant status than were expected. USCIS generally adjudicates the 
merits of T nonimmigrant applications as quickly as it can make a bona 
fide determination. Nevertheless, in the event of processing backlogs, 
DHS recognizes that a bona fide determination may offer a victim of 
trafficking some protection for immigration status purposes, employment 
authorization, and the availability of public benefits through HHS.
    In reference to a 90-day deadline, USCIS cannot guarantee a bona 
fide determination within 90 days in every case because the bona fide 
determination is dependent on the unique circumstances of each case, 
and the completion of biometric and background checks. Typically, these 
checks will be completed within 90 days, but occasionally the checks 
will take longer than 90 days. The completion of biometric and 
background checks depends on several factors, such as the schedule of 
the applicant, the workload of the Federal Bureau of Investigation 
(FBI) and other factors over which USCIS does not have control. DHS 
will retain the current regulatory process for bona fide determinations 
and make no additional changes at this time. See new 8 CFR 214.11(e).
    This commenter also asked USCIS to notify HHS of a bona fide 
determination so that HHS can facilitate federal public benefits 
available to trafficking victims, as well as amend the bona fide 
determination notice to include information about the federal benefits. 
USCIS currently notifies HHS upon approval of an application or a bona 
fide determination. As discussed elsewhere in this preamble, DHS will 
also notify HHS in accordance with TVPRA 2008 section 212(a)(2), 22 
U.S.C. 7105(b)(1)(G). See new 8 CFR 214.11(d)(1)(iii).
4. Derivative Family Members
    An applicant may be permitted to apply for certain family members 
to receive derivative T nonimmigrant status. In this rule, DHS is 
making the following changes and clarifications:
     Defining terms used to refer to victims and their family 
members to provide clarity. New 8 CFR 214.11(a).
     Adding new derivative categories since publication of the 
2002 interim rule. New 8 CFR 214.11(k)(1).
    DHS will discuss each in turn.
a. Definitions
    DHS is defining ``principal T nonimmigrant,'' ``eligible family 
member'' and ``derivative T nonimmigrant'' to clarify these terms used 
throughout the regulations. New 8 CFR 214.11(a). Principal T 
nonimmigrant means the victim of trafficking who has been granted T-1 
nonimmigrant status. Id. DHS uses the term ``victim'' to refer to 
aliens who were subject to a severe form of trafficking in persons, and 
who may be eligible to apply for T-1 nonimmigrant status. Id. Eligible 
family member means someone who has the relationship to a principal 
applicant required for derivative T nonimmigrant status. Id. Derivative 
T nonimmigrant refers to an eligible family member in the United States 
who has been granted T-2, T-3, T-4, T-5, or T-6 nonimmigrant derivative 
status or an eligible family member who has been admitted to the United 
States as a T-2, T-3, T-4, T-5, or T-6 nonimmigrant. Id.
b. Eligibility of Certain Family Members
    The law governing T nonimmigrant status was changed in 2003 to 
allow a principal alien under 21 years of age to apply for admission of 
his or her parents and unmarried siblings under 18 years of age. See 
TVPRA 2003 section 4(b)(1)(B) and (b)(2), INA section 
101(a)(15)(T)(ii)(I), 8 U.S.C. 1101(a)(15)(T)(ii)(I). In 2008, the law 
was amended to allow any principal, regardless of age, to apply for 
derivative T nonimmigrant status for parents or unmarried siblings 
under 18 years of age if the family member faces a present danger of 
retaliation as a result of the principal's escape from the severe form 
of trafficking in persons or cooperation

[[Page 92280]]

with law enforcement. See TVPRA 2008 section 201(a)(2)(D), INA section 
101(a)(15)(T)(ii)(III), 8 U.S.C. 1101(a)(15)(T)(ii)(III). In 2013, the 
derivative categories were further expanded to allow any principal, 
regardless of age, to apply for children (adult or minor) of the 
principal's derivative family members if the derivative's child (adult 
or minor) faces a present danger of retaliation as a result of the 
principal's escape from the severe form of trafficking or cooperation 
with law enforcement. See VAWA 2013 section 1221, INA section 
101(a)(15)(T)(ii)(III), 8 U.S.C. 1101(a)(15)(T)(ii)(III). DHS is 
amending the T nonimmigrant status regulations accordingly in this 
rule. New 8 CFR 214.11(k)(1)(ii)-(iii).
    There are two general categories of family members eligible for T 
nonimmigrant status: those whose eligibility is based on the age of the 
principal and those whose eligibility is based on a showing of a 
present danger of retaliation. See INA section 101(a)(15)(T)(ii), 8 
U.S.C. 1101(a)(15)(T)(ii).
    Under INA section 101(a)(15)(T)(ii)(I), 8 U.S.C. 
1101(a)(15)(T)(ii)(I), eligible family members of a principal alien 
under 21 years of age are the principal's:
     Spouse,
     Child(ren),\11\
---------------------------------------------------------------------------

    \11\ See definition of child at INA section 101(b)(1), 8 U.S.C. 
1101(b)(1), which includes stepchildren.
---------------------------------------------------------------------------

     Unmarried sibling(s) under 18 years of age; and/or
     Parent(s).
    Under INA section 101(a)(15)(T)(ii)(II), 8 U.S.C. 
1101(a)(15)(T)(ii)(II), eligible family members of a principal alien 
over 21 years of age are the principal's:
     Spouse, and/or
     Child(ren).
    Under INA section 101(a)(15)(T)(ii)(III), 8 U.S.C. 
1101(a)(15)(T)(ii)(III), eligible family members whose eligibility is 
based on a showing of a present danger of retaliation as a result of 
the principal's escape from the severe form of trafficking or 
cooperation with law enforcement (regardless of the age of the 
principal or, except where noted below, the age of the derivative) are 
the principal's:
     Parent(s) (added by TVPRA 2008),
     Unmarried sibling(s) under 18 years of age (added by TVPRA 
2008),\12\
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    \12\ Practically, the ``parent(s)'' and ``unmarried sibling(s) 
under 18 years of age'' derivative categories added by TVPRA 2008 
benefit principal aliens who are over 21 years of age. This is 
because regardless of whether the family member faces a present 
danger of retaliation as a result of the principal alien's escape 
from the severe form of trafficking or cooperation with law 
enforcement, the parent(s) and unmarried sibling(s) under 18 years 
of age of a principal who is under 21 years of age qualify for 
derivative T nonimmigrant status under INA section 
101(a)(15)(T)(ii)(II).
---------------------------------------------------------------------------

     Child(ren) or stepchild(ren),\13\ namely the adult or 
minor child of the principal alien's spouse (added by VAWA 2013),
---------------------------------------------------------------------------

    \13\ Stepchildren are eligible under the definition of child at 
INA section 101(b)(1). Delineating stepchildren in this list is not 
intended to mean stepchildren are not already eligible. DHS includes 
this because the new T-6 category is complex and this list is 
intended to aid the reader.
---------------------------------------------------------------------------

     Grandchild(ren), namely the adult or minor child of the 
principal alien's child (added by VAWA 2013),
     Niece or nephew, namely the adult or minor child of the 
principal alien's sibling (added by VAWA 2013), and/or
     Sibling(s) (regardless of age or marital status), namely 
the adult or minor child of the principal alien's parent (added by VAWA 
2013).\14\
---------------------------------------------------------------------------

    \14\ Section 1221 of VAWA 2013 provided, ``Section 
101(a)(15)(T)(ii)(III) of the Immigration and Nationality Act (8 
U.S.C. 1101(a)(15)(T)(ii)(III)[)] is amended by inserting `, or any 
adult or minor children of a derivative beneficiary of the alien, 
as' after `age'.'' 127 Stat. 144. The resulting statutory text in 
INA section 101(a)(15)(T)(ii)(III) is awkwardly worded: ``any parent 
or unmarried sibling under 18 years of age, or any adult or minor 
children of a derivative beneficiary of the alien, as of an alien 
described in subclause (I) or (II) who the Secretary . . . 
determines faces a present danger of retaliation as a result of the 
alien's escape from the severe form of trafficking or with law 
enforcement'' (emphasis added). DHS believes that this provision is 
most reasonably construed as encompassing parents of principal T-1 
nonimmigrants (regardless of the T-1's age), unmarried siblings of 
T-1 nonimmigrants (regardless of the T-1's age), and adult and minor 
children of derivative T nonimmigrants described in INA section 
101(a)(15)(T)(ii)(I) or (II). A contrary reading would result in the 
inclusion of at-risk parents and unmarried siblings under 18 of 
derivative T nonimmigrants but the exclusion of at-risk parents and 
unmarried siblings under 18 of adult principal T-1 nonimmigrants. 
DHS does not believe that Congress intended such a counterintuitive 
outcome.
---------------------------------------------------------------------------

    The VAWA 2013 derivative expansion for children (adult or minor) of 
the principal's derivative family members if the derivative's child 
(adult or minor) faces a present danger of retaliation does not extend 
to the family members of the adult or minor child. For example, the 
spouse of an adult niece would not be eligible for derivative T 
nonimmigrant status.
    The principal applicant may file an Application for Family Member 
of T-1 Recipient, Form I-914 Supplement A on behalf of these eligible 
family members, in accordance with form instructions. When relevant, 
and as described below, evidence that demonstrates a present danger of 
retaliation to the eligible family member must be included.
    New 8 CFR 214.1(a)(1)(viii) classifies the principal alien and 
eligible derivative family members as:
     T-1 (principal alien);
     T-2 (spouse);
     T-3 (child);
     T-4 (parent);
     T-5 (unmarried sibling under 18 years of age); and/or
     T-6 (adult or minor child of a principal's derivative).
    VAWA 2013 did not amend INA section 245(l), 8 U.S.C. 1255(l) to 
explicitly provide for adjustment of status for individuals who were 
granted derivative T nonimmigrant status as the children (adult or 
minor) of the principal's derivative family members who face a present 
danger of retaliation as a result of the principal's escape from the 
severe form of trafficking or cooperation with law enforcement.\15\ 
However, USCIS may adjust the status of the principal and any person 
admitted under INA section 101(a)(15)(T)(ii), 8 U.S.C. 
1101(a)(15)(T)(ii), as the spouse, parent, sibling or child. See INA 
section 245(l)(1), 8 U.S.C. 1255(l)(1). Even though section 245(l)(1) 
of the INA specifically names only the ``spouse, parent, sibling or 
child'' of the T-1 nonimmigrant, the statute is reasonably construed as 
allowing for the adjustment of status of any eligible derivative given 
its general reference to ``any person admitted under section 
101(a)(15)(T)(ii),'' which as amended by VAWA 2013 includes the new 
derivative classes. The plain text, therefore, could reasonably be 
construed to encompass the new derivative class of children of 
derivative T nonimmigrants.
---------------------------------------------------------------------------

    \15\ In section 809 of VAWA 2013, however, Congress did amend 
section 705(c) of the CNRA to clarify that physical presence in the 
CNMI on, before or after November 28, 2009 will be considered 
physical presence in the United States for purposes of INA section 
245(l).
---------------------------------------------------------------------------

    To conclude otherwise would be to impute to Congress, by virtue of 
this apparently inadvertent omission, an improbable intent to preclude 
the new class of derivatives from adjusting status, thwarting the very 
protection, family unity, and victim stabilization aims animating the 
expansion of derivative eligibility in the 2008 TVPRA and 2013 VAWA 
reauthorizations. See, e.g., United States v. Casasola, 670 F.3d 1023, 
1029 (9th Cir. 2012) (``[W]e do not impute to Congress an intent to 
create a law that produces an unreasonable result.''). The practical 
effect of precluding adjustment of status would be to require these 
children of derivative T nonimmigrants to return, upon the expiration 
of their T nonimmigrant status, to the danger of retaliation that DHS 
and the LEA believed warranted their admission to the United States.

[[Page 92281]]

Nothing in the greater statutory scheme or the legislative history of 
either law suggests that such a result was congressionally designed or 
that the failure to provide a conforming amendment to section 245(l)(1) 
was intentional or due to anything other than oversight or 
inadvertence.\16\
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    \16\ This conclusion is bolstered by the fact that Congress 
similarly did not update the identical reference to ``spouses, sons, 
daughters, siblings, or parents of such aliens [(T-1 
nonimmigrants)]'' in the provision establishing that the annual 
numerical limitation on grants of T nonimmigrant visas or status 
does not apply to derivative beneficiaries. INA section 214(o)(3), 8 
U.S.C. 1184(o)(3); cf., e.g., King v. Burwell, 135 S. Ct. 2480, 
2489, 2495 (2015) (observing that court's ``duty is to construe 
statutes, not isolated provisions,'' that the meaning of a phrase 
``may seem plain when viewed in isolation, [but] turns out to be 
untenable in light of the statute as a whole'' and that ``the 
context and structure of the [act may] compel us to depart from what 
would otherwise be the most natural reading of the pertinent 
statutory phrase'') (quotation marks and citation omitted); Validus 
Reinsurance, Ltd. v. United States, 786 F.3d 1039, 1045-46 (D.C. 
Cir. 2015) (noting that courts ``must . . . avoid statutory 
interpretations that bring about an anomalous result when other 
interpretations are available'') (quotation marks omitted); Kolon 
Indus. Inc. v. E.I. DuPont de Nemours & Co., 748 F.3d 160, 169 (4th 
Cir. 2014) (``Even the plain meaning of a statute is not conclusive 
`in the rare cases [in which] the literal application of a statute 
will produce a result demonstrably at odds with the intentions of 
its drafters.''') (quoting United States v. Ron Pair Enters., Inc., 
489 U.S. 235, 242 (1989) (alteration in original)).
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    Thus, individuals who were granted derivative T nonimmigrant status 
as the children (adult or minor) of the principal's derivative family 
members who face a present danger of retaliation as a result of the 
principal's escape from the severe form of trafficking or cooperation 
with law enforcement, may apply for adjustment of status under INA 
section 245(l) provided they are otherwise eligible. See new 8 CFR 
245.23(b)(2).
5. Age-Out Protection of Eligible Family Members
    In some USCIS benefits, a principal alien is said to ``age-out'' if 
the alien was a certain age, generally under 21 years of age, at the 
time of filing, but then turns a certain age before USCIS adjudicates 
the application or petition. This type of age-out does not occur for 
principal aliens applying for T nonimmigrant status because they are 
protected by statute. See INA section 101(a)(15)(T)(ii)(I), 8 U.S.C. 
1101(a)(15)(T)(ii)(I). However, as described in the following, DHS is 
addressing other types of age-out situations related to the ability of 
eligible family members to seek T nonimmigrant status.
    In this rule, DHS makes the following changes and clarifications:
     A child principal can apply for all eligible family 
members, including parents and unmarried siblings under 18 years of 
age, so long as the child was under 21 years of age when he or she 
filed for T-1 nonimmigrant status. New 8 CFR 214.11(k)(5)(ii).
     An unmarried sibling of a child principal need only be 
under 18 years of age at the time the principal files for T-1 
nonimmigrant status. New 8 CFR 214.11(k)(5)(ii).
     A child derivative need only be under 21 years of age at 
the time the principal parent filed for T-1 nonimmigrant status. New 8 
CFR 214.11(k)(5)(iii).
     Clarifying the distinction between age-out protections and 
marital status of a child or a sibling. New 8 CFR 214.11(k)(5)(v).
a. Age-Out Protection for Child Principal To Apply for Eligible Family 
Members
    Seven commenters noted that a principal applicant under 21 years of 
age could turn 21 years of age before adjudication of the T 
nonimmigrant application, or age-out, and not be able to apply for a 
parent as a T-4 derivative. These commenters urged DHS to adopt the 
standard that if a principal applicant is under 21 years of age at the 
time of filing an application for T-1 nonimmigrant status, the ability 
to include a parent as a T-4 derivative is preserved. One commenter 
wrote that DHS should lock in the child's age for purposes of 
eligibility as of the date the child comes to the attention of law 
enforcement.
    TVPRA 2003 fixed this potential age-out problem. See TVPRA 2003 
section 4(b)(2)(B). A principal who files an application for T 
nonimmigrant status while under 21 years of age will continue to be 
treated as an alien described in INA section 101(a)(15)(T)(ii)(I), 8 
U.S.C. 1101(a)(15)(T)(ii)(I) (a principal alien under 21 years of age), 
even if the alien attains 21 years of age while the T-1 application is 
pending. See INA section 214(o)(5), 8 U.S.C. 1184(o)(5). This means 
that as long as a principal applicant was under 21 years of age at the 
time of filing for T-1 status, he or she can still file an Application 
for Family Member of T-1 Recipient, Form I-914 Supplement A, to include 
T-4 parents or T-5 unmarried siblings under 18 years of age, even if 
the principal applicant turns 21 years of age before the principal 
alien's T-1 application is adjudicated. See new 8 CFR 214.11(k)(5)(ii).
b. Age-Out Protection for Unmarried Sibling Derivative of Child 
Principal
    Similarly, TVPRA 2003 provides that an unmarried sibling of a 
principal T-1 applicant under 21 years of age need only be under the 
age of 18 at the time the principal T-1 applicant files the Application 
for T Nonimmigrant Status, Form I-914 for T-1 nonimmigrant status. See 
TVPRA 2003 section 4(b)(1)(B), INA section 101(a)(15)(T)(ii)(I), 8 
U.S.C. 1101(a)(15)(T)(ii)(I); new 8 CFR 214.11(k)(5)(ii). It does not 
matter if the unmarried sibling turns 18 years of age before the 
principal applicant files an Application for Family Member of T-1 
Recipient, Form I-914 Supplement A.
c. Age-Out Protection for Child Derivative
    In addition, INA section 214(o)(4), 8 U.S.C. 1184(o)(4) was revised 
to provide that as long as a child T-3 derivative was under 21 years of 
age on the date the principal T-1 parent applied for T-1 nonimmigrant 
status, he or she will continue to be classified as a child and allowed 
entry as a derivative child. See TVPRA 2003 section 4(b)(2)(B). This 
means that age at the time of classification, entry into the United 
States, or the date the child came to the attention of law enforcement, 
does not matter. Therefore, DHS has provided in this rule that for a 
child to be T-3 derivative, he or she must be under the age of 21 when 
the parent T-1 filed the Application for T Nonimmigrant Status, Form I-
914 for T-1 nonimmigrant status. See new 8 CFR 214.11(k)(5)(iii).
d. Marriage of Eligible Family Members
    In order to be eligible for T-3 or T-5 status, this interim rule 
requires a child or a sibling under the age of 18 to be unmarried:
     At the time the Application for T Nonimmigrant Status, 
Form I-914 for the principal is filed and adjudicated;
     At the time the Application for Family Member of T-1 
Recipient, Form I-914 Supplement A for the eligible family member is 
filed and adjudicated; and
     At the time of admission to the United States (if an 
eligible family member is outside the United States). See new 8 CFR 
214.11(k)(5)(v).
    The law uses the term ``children'' in the derivative categories for 
family members. See INA section 101(a)(15)(T)(ii), 8 U.S.C. 
1101(a)(15)(T)(ii). The term ``child'' is defined as a person who is 
under 21 years of age and unmarried. See INA section 101(b)(1), 8 
U.S.C. 1101(b)(1). The derivative category for siblings

[[Page 92282]]

clarifies that the sibling must be unmarried and under the age of 18 
years. See INA section 101(a)(15)(T)(ii), 8 U.S.C. 1101(a)(15)(T)(ii).
    The age-out protections described above are linked specifically to 
age, but are not linked to marital status. For example, INA section 
214(o)(4), 8 U.S.C. 1184(o)(4), specifies that an ``unmarried alien,'' 
who is the eligible family member of a parent and was under 21 years of 
age when the parent applied for T-1 status, can continue to be 
classified as a child if he or she turns 21 before adjudication. DHS 
believes that in giving a specific time frame related to age only and 
by using the term ``unmarried alien,'' Congress did not intend a 
similar time-of-filing standard with respect to marital status.
    Similarly, Congress used the phrase ``children, unmarried siblings 
under 18 years of age on the date on which such alien applied for 
status'' in listing eligible family members for a principal who is 
under 21 years of age. See INA section 101(a)(15)(T)(ii)(I), 8 U.S.C. 
1101(a)(15)(T)(ii)(I). Congress provided a specific time frame related 
to when siblings need to be under the age of 18, but does not give a 
time frame for marriage of either children or siblings. DHS believes 
that Congress intended that derivative status for T-3 children and T-5 
unmarried siblings under the age of 18 should be limited to unmarried 
children and unmarried siblings through time of adjudication of both 
the principal's and derivative's T nonimmigrant application, as well as 
the admission into the United States of the family member. See new 8 
CFR 214.11(k)(5)(v); cf., e.g., Akhtar v. Gonzales, 406 F.3d 399, 407-
08 (6th Cir. 2005) (concluding that Congress' provision of special age-
out protections for derivative asylees but not similar protections 
based on marital status is reasonable and ``easily withstand[s] 
constitutional scrutiny'').
e. Evidence for Eligible Family Members
    The principal applicant must submit an Application for Family 
Member of T-1 Recipient, Form I-914 Supplement A, for each eligible 
family member with all required initial evidence and supporting 
documentation according to form instructions. See new 8 CFR 
214.11(k)(2) and (3). DHS will require the following initial and 
supporting evidence:
     Evidence demonstrating the relationship of the eligible 
family member to the principal applicant;
     If seeking T-4, T-5, or T-6 status based on present danger 
of retaliation to the eligible family member, evidence of this danger; 
and
     If the eligible family member is inadmissible, a copy of 
the eligible family member's Application for Advance Permission to 
Enter as Nonimmigrant, Form I-192 and attachments.
    As discussed above, DHS has removed the provisions weighing 
evidence as primary or secondary and will accept any credible evidence 
to demonstrate each eligibility requirement for derivative T 
nonimmigrant status. As is the case in all other immigration benefits, 
the applicant bears the burden of establishing eligibility. See 8 CFR 
103.2(b). USCIS will consider any credible evidence relevant to the 
application for derivative T nonimmigrant status. See new 8 CFR 
214.11(k)(7) and (d)(2)(ii). USCIS will exercise its sole discretion to 
determine what evidence is credible and the weight of such evidence. 
Id.
    DHS is removing regulatory language that required demonstration of 
extreme hardship to an eligible family member if the eligible family 
member was not allowed to accompany or follow to join the T-1 principal 
applicant. See 8 CFR 214.11(o)(1)(ii) and (5). This was a statutory 
requirement that was removed by VAWA 2005. See VAWA 2005 section 
801(a)(2).
    The provisions under new 8 CFR 214.11(k)(6) describe how an 
applicant can demonstrate a present danger of retaliation to an 
eligible parent or unmarried sibling under the age of 18, or to a child 
(adult or minor) of a derivative applying for derivative T nonimmigrant 
status. USCIS will consider any credible evidence of a present danger 
of retaliation to the eligible family member. Present danger will be 
evaluated on a case-by-case basis. An applicant may submit a statement 
describing the danger the family member faces and how the danger is 
linked to the victim's escape from trafficking or cooperation with law 
enforcement. An applicant's statement alone, however, may not be 
sufficient. Other examples of evidence include, but are not limited to: 
a previous grant of advance parole to a family member; a signed 
statement from an LEA describing the danger of retaliation; trial 
transcripts, court documents, police reports, news articles, copies of 
reimbursement forms for travel to and from court; documentation from 
their country of origin or place of residence (e.g. foreign government 
agencies, local law enforcement, social services), and affidavits from 
other witnesses. Regardless of whether the applicant submits a 
statement from an LEA, USCIS reserves the right to contact the LEA most 
likely to be involved in the criminal case, if appropriate. Applicants 
who believe such contact could further endanger them or their family 
member should indicate that in a cover letter in the application for 
the family member's T derivative status or otherwise contact USCIS.

C. Adjudication and Post-Adjudication

1. Prohibitions on Use of Information
    In this rule, DHS makes the following changes and clarifications 
relating to the disclosure and use of an applicant's information 
provided to USCIS:
     Updating the regulations to account for statutory 
confidentiality provisions applicable to T nonimmigrants. See new 8 CFR 
214.11(p)
     Confirming the legal requirement to turn over information 
to prosecutors. Id.
     Confirming the warning on the T nonimmigrant application 
that information an applicant provides could be used to remove the 
applicant.
    DHS discusses each in turn.
a. Applicability of Confidentiality Provisions
    The confidentiality provisions of section 384 of the Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 
codified at 8 U.S.C. 1367, apply to applicants for T nonimmigrant 
status. See IIRIRA section 384, 8 U.S.C. 1367. DHS issued the 2002 
interim rule before the confidentiality provisions were applicable to 
those seeking T nonimmigrant status. Congress extended the 
confidentiality provisions to T nonimmigrant applicants in VAWA 2005. 
See VAWA 2005 section 817. In the 2002 interim rule, DHS did include 
some information about disclosure of an applicant's information. For 
example, DHS allowed for disclosure of information to LEAs with the 
authority to detect, investigate, or prosecute severe forms of 
trafficking in persons. See 8 CFR 214.11(e). In this rule, DHS is 
incorporating the confidentiality provisions provided at 8 U.S.C. 1367, 
as amended, and including implementing provisions similar to those 
provided in the DHS U nonimmigrant status regulations. See new 8 CFR 
214.11(p).
    DHS, however, does not see a need to include the full list of 
protections and exceptions, as it would essentially reiterate the 
language of 8 U.S.C. 1367(a)(2) and (b). By citing to the statutory 
confidentiality provisions, DHS is protecting applicants while also 
ensuring that the regulations remain up to date. DHS has issued 
department-wide guidance on how these confidentiality provisions are 
interpreted and how they will be

[[Page 92283]]

implemented. See, e.g., Department of Homeland Security Directive 002-
02 and Instruction 002-02-001, Implementation of Section 1367 
Information Provisions. DHS components plan to issue further guidance 
specific to component operations.
    T nonimmigrant applicants are protected under 8 U.S.C. 1367 in two 
ways. First, adverse determinations of admissibility or deportability 
against an applicant for T nonimmigrant status, with a limited 
exception for individuals convicted of certain crimes, cannot be made 
based on information furnished solely by the perpetrator of the acts of 
trafficking in persons. See IIRIRA section 384(a)(1)(F), 8 U.S.C. 
1367(a)(1)(F). Second, the statute prohibits the use or disclosure to 
anyone of any information relating to the beneficiary of a pending or 
approved application for T nonimmigrant status except in certain 
limited circumstances. See IIRIRA section 384(a)(2), (b), 8 U.S.C. 
1367(a)(2), (b). Section 1367(a)(2) allows the release of information 
to a sworn officer or employee of DHS, DOJ, DOS, or a bureau or agency 
of either of those Departments for legitimate Department, bureau, or 
agency purposes. Id. Section 1367(b) also enumerates specific 
exceptions to confidentiality. The statute permits, for example, 
disclosure of protected information, in certain limited circumstances, 
to law enforcement and national security officials and nongovernmental 
victim services providers.
    This rule, at new 8 CFR 214.11(p), also essentially reflects the 
same restrictions on use and disclosure of information relating to 
applicants for and beneficiaries of T nonimmigrant status that are 
described in DHS' interim U nonimmigrant status regulations at 8 CFR 
214.14(e). See New Classification for Victims of Criminal Activity; 
Eligibility for `U' Nonimmigrant Status, 72 FR 53014, 53039 (Sept. 17, 
2007). These restrictions are based on the statutory directive that DHS 
not ``permit use by or disclosure to anyone'' (other than a sworn 
officer or employee of DHS, DOJ, or DOS) of ``any information which 
relates to'' an applicant for or beneficiary of T or U nonimmigrant 
status or VAWA immigration relief, with limited exceptions (e.g., law 
enforcement or national security purposes). See 8 U.S.C. 1367(a)(2), 
(b). The intent of the restrictions in 8 U.S.C. 1367(a) on the use and 
disclosure of protected information was to ``ensure that abusers and 
perpetrators of crime cannot use the immigration system against their 
victims,'' either to silence them or to commit further abuse. 151 Cong. 
Rec. E2605, E2607 (statement of Rep. John Conyers in support of VAWA 
2005 amendments to 8 U.S.C. 1367).
b. Disclosure Required in Relation to Criminal Prosecution
    In the 2002 interim rule, DHS allowed for disclosure of information 
to DOJ officials responsible for prosecution in all cases involving an 
ongoing or impending prosecution of any defendants who are or may be 
charged with severe forms of trafficking in persons in connection with 
the victimization of the applicant. Id. This provision complies with 
constitutional requirements that pertain to the government's duty to 
disclose information, including exculpatory evidence or impeachment 
material, to defendants. See, e.g., U.S. Const. amends. V, VI; Brady v. 
Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 
150, 154 (1972).
    DHS received seven comments relating to the provision that allows 
federal authorities and defendants in criminal proceedings to review 
any information from an application for T nonimmigrant status. 
Commenters suggested that the standard for disseminating information 
should be that:
    1. Federal authorities should have to make a request in writing for 
release of information;
    2. Prosecutors should be prohibited from releasing information to a 
defendant unless the information is needed for impeachment; and
    3. In the event a prosecutor determines evidence to be exculpatory, 
a judge should review the information and give time for victim safety 
planning before information will be released.
    In the 2002 interim rule, DHS explained its position on timely 
disclosure of information, including DOJ's obligation to provide 
statements by witnesses and certain other documents to defendants in 
pending criminal proceedings. See 67 FR at 4789. These obligations stem 
from constitutional, statutory and other legal requirements pertaining 
to the duty to disclose exculpatory evidence or impeachment material to 
a criminal defendant in order to prepare a defense. Id. DHS appreciates 
the need for confidentiality and especially the desire to protect the 
safety of victims. However, we must balance the need to take measures 
to protect victims from perpetrators with the need to comply with 
constitutional requirements, and DHS believes that the regulations as 
currently drafted reflects the best way to balance these 
considerations. In addition, the determination of whether 
constitutional or other legal obligations require disclosure in a 
criminal matter is a determination reserved to prosecuting attorneys. 
DHS therefore declines to amend its regulation regarding the 
dissemination of information, other than some minor edits to account 
for the creation of DHS and streamline the language.
c. Use of Information on the T Nonimmigrant Status Application
    Commenters also raised concerns that the Application for T 
Nonimmigrant Status, Form I-914 warns that any information provided 
could be used to remove an unsuccessful applicant. The commenters 
asserted that this policy would hinder applications because victims may 
be reluctant to work with law enforcement if a victim thought he or she 
would be removed. USCIS does not have a policy to refer applicants for 
T nonimmigrant status for removal proceedings absent serious 
aggravating circumstances, such as the existence of an egregious 
criminal history, a threat to national security, or where the applicant 
is implicit in the trafficking. USCIS includes a standard warning on 
many applications that information within the application could lead to 
removal. USCIS believes it is a sound practice to warn applicants of 
this fact, and not including it would be unfair to applicants for whom 
such a warning could prove important.
2. Waivers of Grounds of Inadmissibility
    An applicant for T nonimmigrant status must be admissible to the 
United States, or otherwise obtain a waiver of any grounds of 
inadmissibility. In this rule, DHS is making the following changes and 
clarifications:
     Clarifying the waiver authority for T nonimmigrants and 
the public charge exemption. New 8 CFR 212.16(b).
     Changing the standard for exercising waiver authority only 
in ``extraordinary circumstances'' over criminal grounds of 
inadmissibility when the crime does not relate to the trafficking 
victimization. New 8 CFR 212.16(b)(2).
     Removing language that waiver authority should not be 
exercised for inadmissibility grounds that may limit the ability of the 
applicant to adjust status. 8 CFR 212.16(b)(3).
     Clarifying that DHS takes into account trafficking 
victimization when exercising waiver authority. New 8 CFR 212.16(b)(2).
     Retaining the current separate waiver application process. 
New 8 CFR 212.16(a).

[[Page 92284]]

     Clarifying the waiver process at adjustment of status.
a. Waiver Authority for T Nonimmigrants
    Under INA section 212(d)(13), 8 U.S.C. 1182(d)(13), DHS has broad 
discretionary authority to waive grounds of inadmissibility.\17\ DHS 
may waive INA section 212(a)(1) (health-related grounds), 8 U.S.C. 
1182(a)(1), if DHS considers it to be in the national interest to grant 
a waiver. See INA section 212(d)(13)(B)(i), 8 U.S.C. 1182(d)(13)(B)(i). 
DHS may waive almost any other ground of INA section 212(a), 8 U.S.C. 
1182(a), if DHS considers it to be in the national interest to grant a 
waiver and determines that the activities rendering the applicant 
inadmissible were caused by, or were incident to, the trafficking 
victimization. See INA section 212(d)(13)(B)(ii), 8 U.S.C. 
1182(d)(13)(B)(ii). DHS, however, may not waive INA sections 212(a)(3) 
(security and related grounds), (10)(C) (international child 
abduction), or (10)(E) (former U.S. citizens who renounced citizenship 
to avoid taxation), 8 U.S.C. 1182(a)(3), (10)(C), (10)(E).
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    \17\ Section 212(d)(13)(B) of the INA states, in part, ``[I]f 
the Secretary of Homeland Security considers it to be in the 
national interest to do so, the Secretary of Homeland Security, in 
the Attorney General's discretion, may waive the application of'' 
various grounds of inadmissibility. 8 U.S.C. 1182(d)(13)(B) 
(emphasis added). The vestigial reference to the Attorney General in 
that sentence is clearly a drafting oversight. DHS therefore reads 
the provision as referring, instead, to the Secretary's discretion.
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    In addition, because INA section 212(a)(4) (public charge), 8 
U.S.C. 1182(a)(4), does not apply to an applicant for T nonimmigrant 
status (but would apply at the time of adjustment of status to lawful 
permanent resident), see INA section 212(d)(13)(A), 8 U.S.C. 
1182(d)(13)(A), no waiver of that ground is necessary. TVPRA 2003 added 
INA section 212(d)(13)(A), 8 U.S.C. 1182(d)(13)(A), to eliminate the 
public charge ground at the time the applicant seeks T nonimmigrant 
status. TVPRA 2003 section 4(b)(4), codified at INA section 
212(d)(13)(A), 8 U.S.C. 1182(d)(13)(A). DHS is amending the regulations 
as necessary in this interim rule. See new 8 CFR 212.16(b).
b. Criminal Grounds of Inadmissibility
    DHS received 21 comments relating to different aspects of waivers 
of inadmissibility. Eight commenters objected to the language of 8 CFR 
212.16(b)(2), stating that USCIS will exercise its discretion to waive 
criminal grounds of inadmissibility under INA section 212(a)(2), 8 
U.S.C. 1182(a)(2) (criminal and related grounds), only in ``exceptional 
cases'' where the criminal activity was not caused by or was not 
incident to the trafficking in persons. Commenters thought the language 
about ``exceptional cases'' was not statutorily required, replaced a 
simple exercise of discretion, and was unnecessary. In addition, 
commenters encouraged DHS to consider the type of crimes and the 
seriousness of the offenses when exercising discretion based on 
criminal grounds. DHS has the discretionary authority to waive the 
criminal grounds of inadmissibility for T nonimmigrant status 
applicants if the criminal activities were caused by or incident to the 
trafficking victimization. See INA section 212(d)(13)(B)(ii), 8 U.S.C. 
1182(d)(13)(B)(ii). DHS implemented this provision in the 2002 interim 
rule and explained that it was choosing to exercise its discretion in 
cases where the criminal grounds of inadmissibility were not caused by 
or incident to trafficking, only in ``exceptional cases.'' See 67 FR 
4789; 8 CFR 212.16(b)(2). In this interim rule, DHS is revising its 
regulations to describe how USCIS will consider the nature and 
seriousness of the offenses and the number of convictions in exercising 
its discretion. See new 8 CFR 212.16(b)(3). In this rule, DHS is 
replacing the general ``exceptional cases'' limitation. Instead, in 
cases where the applicant has a conviction for a violent or otherwise 
dangerous crime, DHS will allow waivers, in its discretion, in 
``extraordinary circumstances'' only. See new 8 CFR 212.16(b)(3). A 
similar standard applies in the related U nonimmigrant status 
regulations at 8 CFR 212.17.\18\
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    \18\ This approach also is consistent with DHS and DOJ practice 
in other immigration contexts. See, e.g., 8 CFR 212.7(d) (INA 
section 212(h)(2) waivers); Matter of Jean, 23 I&N Dec. 373, 383 
(A.G. 2002) (INA section 209(c) waivers).
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c. Waivers Relating to Adjustment of Status
    Five commenters expressed concern with the language of 8 CFR 
212.16(b)(3), stating that USCIS will exercise its discretion to waive 
grounds of inadmissibility that would prevent or limit the applicant 
from adjusting to permanent resident status only in exceptional cases. 
Commenters objected to the connection between inadmissibility at the 
application phase of T nonimmigrant status with inadmissibility at the 
adjustment of status phase. Commenters urged DHS to take note of INA 
section 245(l)(2), 8 U.S.C. 1255(l)(2), which provides a waiver 
authority for the adjustment of status phase that is similar to the 
authority contained at INA section 212(d)(13), 8 U.S.C. 1182(d)(13). 
Since the publication of the 2002 interim rule, DHS published a rule on 
adjustment of status to permanent resident for T nonimmigrants. See 8 
CFR 245.23 and Adjustment of Status to Lawful Permanent Resident for 
Aliens in T or U Nonimmigrant Status, 73 FR 75540 (Dec. 12, 2008). The 
regulations at 8 CFR 245.23 clarify that any grounds of inadmissibility 
waived at the time USCIS grants T nonimmigrant status will be 
considered waived for purposes of adjustment of status under INA 
section 245(l) and that any grounds of inadmissibility that an 
applicant acquires while in T nonimmigrant status require a new waiver. 
In this interim rule, DHS is removing 8 CFR 212.16(b)(3), as it is no 
longer necessary in light of the adjustment of status regulations.
d. Waivers of Inadmissibility Grounds Related to the Trafficking 
Victimization
    A number of commenters expressed general concerns over particular 
grounds of inadmissibility that relate to victimization based on 
trafficking in persons. DHS received two comments about waivers of 
inadmissibility for those with the human immunodeficiency virus (HIV), 
one comment about waivers of inadmissibility for those engaged in 
prostitution, and one comment about waivers of inadmissibility for drug 
users. Commenters stated that victims may become HIV positive as a 
result of trafficking. Commenters noted that often trafficking victims 
are forced to engage in prostitution by traffickers, or continue in 
prostitution for basic survival. Commenters also expressed concern 
about victims who self-medicate with illegal drugs to ease the effects 
of trauma and/or other psychological conditions due to the 
victimization they suffered. These commenters did not provide specific 
recommendations, beyond asking DHS to take special note of those 
concerns.
    DHS acknowledges that victims of trafficking in persons are an 
especially vulnerable population, and therefore considers the special 
circumstances of victims when exercising its waiver authority. As of 
January 4, 2010, HIV infection is no longer defined as a ``communicable 
disease of public health significance'' according to HHS regulations. 
See 74 FR 56547 (Nov. 2, 2009) (effective Jan. 4, 2010). Therefore, HIV 
infection does not make an applicant inadmissible on health-related 
grounds for any immigration benefit. In addition, USCIS personnel who

[[Page 92285]]

adjudicate applications for T nonimmigrant status and waivers of 
inadmissibility are trained on various aspects of the dynamics of 
victimization. DHS has not made any changes to the regulation as a 
result of these comments.
e. Requesting a Waiver
    In the 2002 interim rule, DHS directed applicants to file the form 
designated by USCIS to request a waiver of inadmissibility. See 8 CFR 
212.16(a). This form is the Application for Advance Permission to Enter 
as Nonimmigrant, Form I-192.\19\ Five commenters asserted that this 
waiver application procedure was overly complicated and suggested a 
simpler procedure of providing space on the Application for T 
Nonimmigrant Status, Form I-914, itself for victims to explain any 
grounds of inadmissibility and attach evidence.
---------------------------------------------------------------------------

    \19\ On August 29, 2011, as part of USCIS's business 
transformation initiative, USCIS replaced specific references to 
Form I-192 to read, ``the form designated by USCIS.'' Immigration 
Benefits Business Transformation, Increment I, Final Rule, 76 FR 
53764 (Aug. 29, 2013), at 53788.
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    DHS is not adopting the suggestion. DHS is concerned that 
additional inadmissibility concerns can arise after an application for 
T nonimmigrant status is approved. Without a waiver of inadmissibility 
on a separate form, USCIS would be unable to address inadmissibility 
concerns other than to revisit the underlying approval itself, which 
could cause problems for the applicant. In addition, USCIS has 
developed a process with DOS for eligible family members abroad so that 
DOS officers are made aware of the inadmissibility grounds waived by 
USCIS. This process might be compromised if a separate waiver form were 
not used, resulting in potential delays or problems for eligible family 
members consular processing to apply for admission to the United 
States. DHS believes the Application for Advance Permission to Enter as 
Nonimmigrant, Form I-192 process is working well and does not need to 
be modified at this time; however, DHS welcomes further comments on 
this process.
    In addition, one commenter asserted that the waiver application 
process at the time of adjustment was burdensome. The commenter 
recommended sparing victims from applying for a waiver of 
inadmissibility both at the time of application and the time of 
adjustment of status.
    Since publication of the 2002 interim rule, DHS published an 
interim rule with request for comments on adjustment of status to 
lawful permanent resident for T nonimmigrants. See 8 CFR 245.23 and 73 
FR 75540. The regulations only require a new request for a waiver of 
inadmissibility at the adjustment of status phase for any new ground of 
inadmissibility that has arisen since the grant of T nonimmigrant 
status. Typically, T nonimmigrants applying for adjustment of status do 
not need to file a request for a new waiver of inadmissibility for 
inadmissibility grounds that were waived at the T nonimmigrant stage. 
In this interim rule, DHS is mainly addressing the T nonimmigrant 
application phase; DHS will consider comments and recommendations that 
relate to adjustment of status in a separate rulemaking.
3. Decisions
    At new 8 CFR 214.11(d)(8)-(10), DHS describes approval and denial 
procedures for applications for T nonimmigrant status. USCIS will issue 
written decisions to grant or deny T nonimmigrant status. If USCIS 
denies an application, it will provide written reasons for the denial. 
In any case where USCIS denies an application for T nonimmigrant 
status, an applicant may appeal to the USCIS Administrative Appeals 
Office (AAO) under established procedures in 8 CFR 103.3.
4. Benefits
    DHS provides for employment authorization incident to a grant of 
principal T nonimmigrant status. See 8 CFR 214.11(l)(4). One commenter 
pointed out that even after a bona fide determination is made, the 
applicant would not receive an employment authorization document (EAD) 
until T nonimmigrant status is granted. This commenter highlighted this 
fact because, even though a victim could be certified by HHS on the 
basis of a bona fide application, he or she would not be eligible for 
certain types of cash assistance and would not be accepted into the 
federal Matching Grant Program. This commenter recommended granting an 
EAD when USCIS determined that an application is bona fide. DHS is 
authorized to grant an EAD in connection with a bona fide 
determination. See Memorandum from Stuart Anderson, Executive Associate 
Commissioner, Office of Policy and Planning, INS, Deferred Action for 
Aliens with Bona Fide Applications for T Nonimmigrant Status (May 8, 
2002). In its discretion, USCIS may grant deferred action to an 
applicant when a T nonimmigrant application is deemed bona fide, while 
awaiting final adjudication. Id. Once an application is deemed bona 
fide and USCIS grants deferred action, the applicant can request 
employment authorization based on the grant of deferred action. See 8 
CFR 274a.12(c)(14).
5. Duration of Status
    Originally, T nonimmigrant status was granted for a period of 3 
years from the date of approval. See 8 CFR 214.11(p) (2002). Upon 
approval, USCIS would notify the recipient of the future expiration of 
his or her nonimmigrant status and of a requirement to apply for 
adjustment of status to permanent resident within the 90 days 
immediately preceding the third anniversary of the approval. Id. At the 
time of the 2002 interim rule, there was no ability to extend T 
nonimmigrant status. Id. DHS provided that an applicant who properly 
applied for adjustment of status would remain in T nonimmigrant status 
until a final decision was rendered on the application. Id. DHS 
received seven comments related to the 90 day adjustment of status 
application period requirement.
    In 2008, DHS published an interim rule implementing adjustment of 
status procedures for T and U nonimmigrants. See 73 FR 75540. DHS 
amended 8 CFR 214.11(p) to incorporate VAWA 2005 legislative changes 
that lengthened the duration of status from 3 years to 4 years, but 
also limited the status to 4 years unless an applicant could qualify 
for an extension. See VAWA 2005 section 821(a), INA section 
214(o)(7)(A), 8 U.S.C. 1184(o)(7)(A). DHS also removed the 90-day 
adjustment of status application period requirement; instead, a T 
nonimmigrant may apply for adjustment of status after accruing three 
years in valid T nonimmigrant status. See 8 CFR 245.23(a)(3).
6. Extension of Status
    Commenters on the 2002 interim rule also objected to the lack of 
extensions available for T nonimmigrant status. Since the publication 
of the 2002 interim rule, legislation allowed for extensions of T 
nonimmigrant status in the following circumstances:
     An LEA, prosecutor, judge, or other authority 
investigating or prosecuting activity relating to human trafficking 
certifies that the presence of the victim in the United States is 
necessary to assist in the investigation or prosecution of such 
activity; \20\
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    \20\ See VAWA 2005 section 821(a); INA section 214(o)(7)(B)(i), 
8 U.S.C. 1184(o)(7)(B)(i).

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[[Page 92286]]

     DHS determines that an extension is warranted due to 
exceptional circumstances; \21\ or
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    \21\ See TVPRA 2008 section 201(b)(1); INA section 
214(o)(7)(B)(iii), 8 U.S.C. 1184(o)(7)(B)(iii).
---------------------------------------------------------------------------

     During the pendency of an application for adjustment of 
status under INA section 245(l), 8 U.S.C. 1255(l).\22\
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    \22\ See TVPRA 2008 section 201(b)(2); INA section 214(o)(7)(C), 
8 U.S.C. 1184(o)(7)(C).
---------------------------------------------------------------------------

    INA section 214(o)(7)(B) and (C), 8 U.S.C. 1184(o)(7)(B) and (C). 
DHS is implementing the extension of status provisions at new 8 CFR 
214.11(l).\23\ Below, DHS discusses each extension category in turn.
---------------------------------------------------------------------------

    \23\ In addition, TVPRA 2008 provided an extension of status for 
T nonimmigrants who were eligible for adjustment of status relief 
under INA section 245(l), 8 U.S.C. 1255(l), but could not obtain 
adjustment of status relief because DHS had not issued implementing 
regulations. See TVPRA 2008 section 201(b)(1); INA section 
214(o)(7)(B)(ii), 8 U.S.C. 1184(o)(7)(B)(ii). TVPRA 2008 was enacted 
on December 23, 2008. DHS issued regulations on adjustment of status 
on December 12, 2008. See 73 FR 75540. Therefore, when TVPRA 2008 
was enacted, regulations on adjustment of status existed. Because 
INA section 214(o)(7)(B)(ii), 8 U.S.C. 1184(o)(7)(B)(ii), is 
obsolete, DHS will not reference this language in this interim rule.
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a. Extension of Status for Law Enforcement Need
    In this interim rule, DHS is implementing the discretionary 
extensions for law enforcement need at new 8 CFR 214.11(l)(1)(i). The T 
nonimmigrant bears the burden of establishing eligibility for an 
extension of status. Id. As outlined in new 8 CFR 214.11(l)(2), to 
request an extension, the T nonimmigrant will file an Application to 
Extend/Change Nonimmigrant Status, Form I-539, along with supporting 
evidence. The Application to Extend/Change Nonimmigrant Status should 
be filed before the individual's T nonimmigrant status expires.
    To establish law enforcement need, supporting evidence may include 
a newly executed Declaration of Law Enforcement Officer for Victim of 
Trafficking in Persons, Form 914 Supplement B, or other evidence from a 
law enforcement official, prosecutor, judge, or other authority who can 
investigate or prosecute human trafficking activity and was involved in 
the applicable case (e.g., a letter on the agency's letterhead, emails, 
or faxes). See new 8 CFR 214.11(l)(5). The applicant must include 
evidence that comes directly from an LEA (as listed above). Id. The 
applicant may also submit any other credible evidence. Id. DHS believes 
this is necessary under INA section 214(o)(7)(B)(i), 8 U.S.C. 
1184(o)(7)(B)(i), because that section allows for an extension only if 
a law enforcement official (which includes prosecutors, judges, and 
others with the authority to investigate or prosecute human 
trafficking) at the Federal, State, or local level ``certifies'' that 
the presence of the victim is necessary. The use of the word 
``certifies'' does not allow for the substitution of evidence that does 
not come directly from an LEA. Applicants are not required to use 
Declaration of Law Enforcement Officer for Victim of Trafficking in 
Persons, Form I-914 Supplement B, to seek an extension of T 
nonimmigrant status.
b. Extension of Status for Exceptional Circumstances
    In this interim rule, DHS is implementing the discretionary 
extensions for exceptional circumstances at new 8 CFR 214.11(l)(1)(ii). 
As described above, to request an extension, the T nonimmigrant will 
file an Application to Extend/Change Nonimmigrant Status, Form I-539, 
along with supporting evidence. New 8 CFR 214.11(l)(2).
    An applicant may submit his or her own statement and any other 
credible evidence to establish exceptional circumstances for an 
extension of status. Such evidence could include, but is not limited 
to, medical records, police or court records, news articles, 
correspondence with an embassy or consulate, and affidavits of 
witnesses. See new 8 CFR 214.11(l)(6). An exceptional circumstance 
could exist when a principal T nonimmigrant's status will expire and an 
approved family member had not yet received a T visa from a consulate 
to apply for admission to the United States. In this example, without 
an extension, if the principal T nonimmigrant's status expires, the 
family member could not apply for a T visa to apply for admission to 
the United States. In the evidence submitted to establish exceptional 
circumstances in this example, the principal should explain what 
exceptional circumstances prevented the family member(s) from applying 
for admission to the United States.
    Applicants should apply for an extension before the T nonimmigrant 
status has expired. USCIS, however, has discretion to grant an 
extension after T nonimmigrant status expires. See new 8 CFR 
214.11(l)(3). The T nonimmigrant should explain in writing, in 
accordance with 8 CFR 214.1(c)(4), why he or she is filing the 
Application to Extend/Change Nonimmigrant Status, Form I-539, after the 
T nonimmigrant status has expired. If USCIS grants an extension of T 
nonimmigrant status, USCIS will issue a new Notice of Action valid from 
the date the previous status expired until 1 year after approval of the 
extension. Once an applicant receives this new Notice of Action, he or 
she may then file an Application to Register Permanent Residence or 
Adjust Status, Form I-485, to adjust status to lawful permanent 
resident before the extension expires.
c. Extension of Status While an Application for Adjustment of Status Is 
Pending
    In this interim rule, DHS implements a mandatory extension for 
those who apply for adjustment of status at new 8 CFR 214.11(l)(7), and 
does not require a separate application or additional supporting 
evidence to request an extension of status when an application for 
adjustment of status has been properly filed. INA section 214(o)(7)(C), 
8 U.S.C. 1184(o)(7)(C), requires USCIS to grant this extension; 
therefore no evidentiary burden rests on the applicant.
7. Waiting List
    Congress has established a 5,000-person limit on the number of 
grants of T-1 nonimmigrant status per fiscal year (from October 1 
through September 30). See INA section 214(o)(2)-(3), 8 U.S.C. 
1184(o)(2)-(3). In the 2002 interim rule, DHS implemented a waiting 
list procedure in the event that the numerical limit is reached in a 
particular fiscal year. See former 8 CFR 214.11(m)(2). USCIS has not 
had to utilize the waiting list procedure created in the 2002 interim 
rule because approvals have not approached 5,000 in any given fiscal 
year. The 2002 interim rule provided that an applicant on the waiting 
list would ``maintain his or her current means to prevent removal.'' 
Id.
    DHS received three comments pointing out that DHS did not address 
protection from removal for those without current means. The commenters 
urged DHS to provide protection from removal or a legal means to stay 
in the United States for this population of applicants.
    DHS agrees with this comment, and has determined that this 
provision is superfluous and confusing. DHS has therefore removed the 
provision, to clarify that applicants who may be placed on the waiting 
list for T nonimmigrant status can either maintain their ``current 
means'' to prevent removal (deferred action, parole, or stay of 
removal) and any employment authorization, or attain ``new means.'' See 
new 8 CFR 214.11(j)(2).
    Although DHS retains the authority to protect applicants on the 
waiting list from being removed, the 2002 interim

[[Page 92287]]

rule's implication that the applicant may not seek other means to 
prevent removal was problematic. DHS has existing policies, procedures, 
and regulations for exercising its discretion in providing parole, 
deferred action, or a stay of removal to individuals on a case-by-case 
basis. See, e.g., 8 CFR 241.6 (administrative stay of removal); 8 CFR 
274a.12(c)(14) (employment authorization for deferred action grantees 
demonstrating economic necessity); 8 CFR 212.5 (parole of aliens into 
the United States). DHS will consider providing temporary relief on a 
case by case basis to applicants on the waiting-list who are 
participating in law-enforcement investigations in the United States 
pursuant to those policies, regulations and procedures.
    This change maintains the protections in the previous regulation 
while providing DHS and the applicant with more flexibility, 
particularly as to those applicants who may have no ``current means'' 
to prevent removal, and allows applicants the flexibility to seek 
alternate avenues of relief if their ``current means'' may not be 
sustainable or the most beneficial.
8. Revocation
    In the 2002 interim rule, DHS created several grounds for 
revocation on notice at 8 CFR 214.11(s). T nonimmigrant status could be 
revoked on notice if:
     The T nonimmigrant violated the requirements of T 
nonimmigrant status;
     The approval of the T nonimmigrant application violated 8 
CFR 214.11 or involved an error in preparation, procedure, or 
adjudication;
     In the case of a T-2 spouse, the T-2 spouse's divorce from 
the T-1 principal became final;
     The LEA notifies USCIS that the principal T nonimmigrant 
has unreasonably refused to cooperate with the investigation or 
prosecution and provides USCIS with a detailed explanation in writing; 
or
     The LEA withdraws its endorsement or disavows the contents 
of the endorsement in a detailed written explanation.
a. Streamlining Revocation Based on Violation of the Requirements of T 
Nonimmigrant Status
    Six commenters asserted that the ground of revocation at 8 CFR 
214.11(s)(1)(i), based on a violation of the requirements of the status 
by the T nonimmigrant, needs clarification. Commenters suggested that 
the meaning is unclear because if the applicant satisfied the 
eligibility requirements, the status should not be revoked, unless 
there was an error in granting the status (which is provided for in 
another ground of revocation).
    DHS agrees that the ground of revocation on notice at 8 CFR 
214.11(s)(1)(i) could benefit from greater clarification. The 
requirements of INA section 101(a)(15)(T), 8 U.S.C. 1101(a)(15)(T) 
generally are victimization, physical presence, compliance with any 
reasonable LEA request for assistance, and extreme hardship involving 
unusual and severe harm if the applicant is removed. If USCIS has 
evidence that one of these requirements was not met, it could revoke 
under 8 CFR 214.11(s)(1)(ii). If the violation is based on a victim not 
complying with reasonable requests, USCIS could revoke under 8 CFR 
214.11(s)(1)(iv) or (v), based on information from an LEA or a 
withdrawal or disavowal of an LEA endorsement (bullets 4 and 5 above, 
respectively). In this interim rule, DHS is therefore removing 8 CFR 
214.11(s)(1)(i). See new 8 CFR 214.11(m)(2). Relatedly, for clarity, 
DHS is incorporating a statutory citation into the ``errant approval'' 
ground of revocation (bullet 2 above). Id.
b. Revocation Based on Information Provided by Law Enforcement
    Commenters were also concerned that an LEA could provide 
information to USCIS that a victim is no longer cooperating and this 
information could serve as the basis for revocation. The commenters 
noted that revocation could be problematic in these cases, because 
USCIS would have already determined the individual would face extreme 
hardship involving unusual and severe harm if removed.
    DHS is not persuaded that there is a problem with receiving 
information from an LEA about a victim with T nonimmigrant status. 
Consistent with the goals of the TVPA, DHS must balance law enforcement 
needs with the protection of victims of trafficking. Law enforcement 
may provide USCIS with valuable probative information, and it would be 
illogical for USCIS to reject this information solely because it came 
from an LEA or because USCIS made a prior adjudication of eligibility. 
USCIS does not revoke automatically upon receiving this LEA 
information; rather, it can revoke after providing notice to the T 
nonimmigrant of the intent to revoke and an opportunity for the victim 
to respond. As new 8 CFR 214.11(m)(2) and 8 CFR 103.3 explain, USCIS 
will issue a notice of intent to revoke in writing, providing the 
applicant with an opportunity to respond, and potentially provide 
additional evidence to rebut the information provided by the LEA. USCIS 
will accept any relevant evidence under new 8 CFR 214.11(d)(2)(ii) and 
(3). Evidence could include, but is not limited to, information about 
the mental or physical health of the applicant, including any ongoing 
trauma, information about the safety concerns involved for the 
applicant or his or her family, information about how the victim has 
been cooperative, information about the disposition of the case, or 
information about how the LEA requests were not reasonable. Id.
    USCIS will then review all the evidence considering the totality of 
the circumstances, and will not revoke based solely on any one factor 
or piece of evidence, including the information provided by the LEA. 
When USCIS initially approves the T nonimmigrant status, including 
making the determination that the victim would face extreme hardship 
upon removal, USCIS also accounts for victimization and compliance with 
reasonable requests. If USCIS learns after approval that there are 
grounds sufficient for revocation under new 8 CFR 214.11(m), USCIS may 
exercise its discretion to revoke the T nonimmigrant status.
c. Revocation of Derivative Nonimmigrant Status
    In this interim rule, DHS is adding a ground for automatic 
revocation applicable only to family members outside of the United 
States. DHS will revoke an approved derivative application if the 
family member notifies USCIS that he or she will not apply for 
admission into the United States. See new 8 CFR 214.11(m)(1). This 
provision closely mirrors a provision in the U nonimmigrant status 
regulations at 8 CFR 214.14(h)(1).
9. Technical Fix for T Nonimmigrants Residing in the CNMI
    Physical presence in the CNMI will be considered in determining 
whether an applicant for T nonimmigrant status meets the physical 
presence requirement. See INA section 101(a)(15)(T)(i)(II); 8 CFR 
214.11(b)(2); see also INA section 101(a)(38) (defining ``United 
States'' for immigration purposes as including the CNMI).
    Prior to the federalization of CNMI immigration law on November 28, 
2009, victims in the CNMI had to travel to Guam or elsewhere in the 
United States to actually be admitted as a T nonimmigrant. See Title 
VII of the Consolidated Natural Resources Act of 2008 (CNRA), Public 
Law 110-229, 122 Stat. 754 (2008) (effectively replacing the CNMI's 
immigration laws with the INA and other applicable U.S.

[[Page 92288]]

immigration laws, with few exceptions). The adjustment of status 
provisions for T nonimmigrants require 3 years of continuous physical 
presence in the United States since admission as a T nonimmigrant. See 
INA section 245(l)(1)(A), 8 U.S.C. 1255(l)(1)(A). An approved T 
nonimmigrant in the CNMI would not accrue this time in the United 
States for purposes of adjustment of status until on or after November 
28, 2009, when the CNRA took effect, and only if he or she was actually 
admitted to the United States. The CNRA included a rule of construction 
that time in the CNMI before November 28, 2009 does not count as time 
in the United States (except for limited purposes). See CNRA section 
705(c).
    VAWA 2013 added a new exception to this rule, so that time in the 
CNMI, whether before or after November 28, 2009, counts as time 
admitted as a T nonimmigrant for establishing physical presence for 
purposes of adjustment of status to lawful permanent residence, so long 
as the applicant was granted T nonimmigrant status. See VAWA 2013, tit. 
viii, section 809. DHS interprets this to mean that when T nonimmigrant 
status was granted to an individual in the CNMI, the 3-year continuous 
physical presence required for adjustment of status began to run at 
that time, even if he or she was not actually admitted in T 
nonimmigrant status. See new 8 CFR 245.23(a)(3)(ii).

D. Filing and Biometric Services Fees

    DHS received 17 comments on the interim rule regarding fees. 
Commenters thought application fees for T nonimmigrant status, 
derivative T nonimmigrant status, and waivers of inadmissibility were 
excessive and burdensome. Some commenters recommended eliminating or 
greatly reducing fees associated with applying for T nonimmigrant 
status, especially for minor victims.
    Since the publication of the 2002 interim rule, intervening events 
resolved commenters' concerns. In 2007, DHS eliminated the fee to file 
the Application for T Nonimmigrant Status, Form I-914, and the 
Application for Family Member of a T-1 Recipient, Form I-914 Supplement 
A. See Adjustment of the Immigration and Naturalization Benefit 
Application and Petition Fee Schedule, 72 FR 29851, at 29865 (Feb. 1, 
2007). Further, USCIS may waive the fee for any request from the time 
of application for T nonimmigrant status until USCIS adjudicates an 
application for adjustment of status. See TVPRA 2008 section 201(d)(3); 
INA section 245(l)(7), 8 U.S.C. 1255(l)(7). DHS added this waiver 
authority at 8 CFR 103.7(c)(3)(xviii). See U.S. Citizenship and 
Immigration Services Fee Schedule, 75 FR 58961 (Sept. 24, 2010). Thus, 
an applicant may request a fee waiver for any other form associated 
with the application for T nonimmigrant status.
    DHS will require biometric services for all applicants for T 
nonimmigrant status between the ages of 14 and 79. See new 8 CFR 
214.11(d)(4) and 8 CFR 103.16 (providing that any individual may be 
required to submit biometric information if the regulations or form 
instructions require such information).\24\ In addition, regarding the 
biometric services fee, at the time of the 2002 interim rule, DHS 
charged applicants for biometric services. DHS regulations now provide 
that no fee will be charged for biometric services for T nonimmigrant 
applicants. See 8 CFR 103.7(b)(1)(i)(C)(3); U.S. Citizenship and 
Immigration Services Fee Schedule; Final Rule, 75 FR 58962, 58991, 
58967, 58986 (Sept. 24, 2010).
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    \24\ Any individual may be required to submit biometric 
information if the regulations or form instructions require such 
information or if requested in accordance with 8 CFR 103.2(b)(9). 
DHS may collect and store for present or future use, by electronic 
or other means, the biometric information submitted by an 
individual. DHS may use this biometric information to conduct 
background and security checks, adjudicate immigration and 
naturalization benefits, and perform other functions related to 
administering and enforcing the immigration and naturalization laws. 
8 CFR 103.16(a).
---------------------------------------------------------------------------

    One commenter suggested that taking fingerprints as part of the 
application process was duplicative since many victims have already had 
fingerprints taken. Biometric capture is a necessary measure in any 
USCIS application process to ensure identity and prevent fraud. USCIS 
must determine the identity of the individual through biometric 
capture. In addition, not all victims of trafficking or all applicants 
for T nonimmigrant status will have had contact with law enforcement or 
have had fingerprints taken by law enforcement and USCIS will not have 
access to the applicant's fingerprints from those who do.
    DHS will not amend its general biometric capture requirements as 
requested by the commenter. DHS, however, is removing the requirement 
at 8 CFR 214.11(d)(2)(ii) that applicants submit three photographs with 
an application for T nonimmigrant status. At the time of the 2002 
interim rule, the DHS biometric process did not include taking 
photographs of applicants. USCIS now takes photographs when capturing 
biometrics, so this requirement is no longer necessary.

V. Regulatory Requirements

A. Administrative Procedure Act

    As explained below, the changes made in this interim rule do not 
require advance notice and opportunity for public comment, because they 
are (1) required by various legislative revisions, (2) exempt as 
procedural under 5 U.S.C. 553(b)(A), (3) logical outgrowths of the 2002 
interim rule, or (4) exempt from public comment under the ``good 
cause'' exception to notice-and-comment under 5 U.S.C. 553(b)(B). DHS 
nevertheless invites written comments on this interim rule, and will 
consider any timely submitted comments in preparing a final rule.
1. Statutorily Required Changes
    As noted elsewhere in the preamble, DHS is conforming its T 
nonimmigrant regulations to statutory changes that provide little 
agency discretion in their interpretation and promulgation. When 
regulations merely restate the statute they implement (i.e., when the 
rule does not change the established legal order), the APA does not 
require the agency to use notice-and-comment procedures. See 5 U.S.C. 
553(b)(B); Gray Panthers Advocacy Comm. v. Sullivan, 936 F.2d 1284, 
1291 (D.C. Cir. 1991). So long as the agency does not expand the 
substantive reach of the statute to impose new obligations, penalties, 
or substantive eligibility requirements--i.e., so long as the agency 
``merely restate[s]'' the statute--notice and comment are unnecessary. 
See World Duty Free Americas, Inc. v. Summers, 94 F. Supp. 2d 61, 65 
(D.D.C. 2000). The following changes meet these criteria:
    (a) Victims who leave the United States and are allowed reentry for 
participation in investigative or judicial processes are eligible. New 
8 CFR 214.11(b)(2), (g)(1)(v), (g)(2)(iii). INA 101(a)(15)(T)(i)(II), 
as amended by TVPRA 2008 section 201(a)(1)(C).
    As discussed above in the preamble, section 201(a)(1)(C) of TVPRA 
2008 amended section 101(a)(15)(T)(i)(II) of the INA, 8 U.S.C. 
1101(a)(15)(T)(i)(II), to include physical presence on account of the 
victim having been allowed to enter the United States to participate in 
investigative or judicial processes associated with an act or 
perpetrator of trafficking. DHS codifies this change in this rule at 
new 8 CFR 214.11(b)(2) and 214.11(g)(1)(v), which provide, 
respectively, that, ``the alien is physically present in the United 
States,'' and the presence requirement reaches an alien who is present, 
``on account of the alien having been allowed entry into the United 
States for participation in investigative or judicial processes

[[Page 92289]]

associated with an act or perpetrator of trafficking.'' This change in 
regulation merely codifies intervening statutory changes. Advance 
notice and opportunity for public comment are therefore unnecessary.
    Incident to expanding the definition of presence as described 
above, this rule also establishes that applicants claiming entry into 
the United States for participation in investigative or judicial 
processes must document that their entry was valid and that it was for 
participation in investigative or judicial processes associated with 
trafficking. New 8 CFR 214.11(g)(3). This provision makes no changes to 
the established legal order, other than to reiterate the public's 
statutory rights and establish procedures for adjudication. Similar to 
a number of other evidentiary requirements in this rule, the 
documentation requirement affords the public maximum flexibility in 
presenting their case to the agency. The change does not impose any 
limitation on the types of evidence that would be acceptable to show 
valid entry. Advance notice and opportunity for public comment are 
therefore unnecessary.
    (b) Victims of trafficking which occurred abroad, who have been 
allowed entry for investigative or judicial processes, are eligible. 
New 8 CFR 214.11(b)(2), (g)(1)(v), (g)(3). INA section 
101(a)(15)(T)(i)(II), 8 U.S.C. 1101(a)(15)(T)(i).
    As noted above, DHS is revising its regulations at new 8 CFR 
214.11(g)(3) to provide that the victim may be physically present in 
the United States on account of having been allowed initial entry into 
the United States for participation in investigative or judicial 
processes associated with an act or perpetrator of trafficking that did 
not occur in the United States. This change expands the scope of the 
regulation as required by section 201(a)(1)(C) of TVPRA 2008 to account 
for eligibility when the trafficking occurred abroad but the victim was 
allowed entry into the United States for participation in investigative 
or judicial processes associated with an act or perpetrator of 
trafficking. Similar to the change described directly above, this 
change in regulation merely codifies intervening statutory changes. 
Advance notice and opportunity for public comment are therefore 
unnecessary.
    (c) Exemption for victims under 18 years old from compliance with 
any reasonable request for assistance. INA section 
101(a)(15)(T)(i)(III)(bb) and (cc), 8 U.S.C. 1101(a)(15)(T)(i)(III)(bb) 
and (cc); new 8 CFR 214.11(b)(3)(i), (ii).
    Under the 2002 interim rule, persons under the age of 15 were not 
required to comply with any reasonable request for assistance in a 
prosecution or investigation from an LEA. Former 8 CFR 
214.11(b)(3)(ii). The statute was amended by TVPRA 2008 to exempt from 
this requirement children under 18 years of age. See INA section 
101(a)(15)(T)(i)(III)(bb) and (cc), 8 U.S.C. 1101(a)(15)(T)(i)(III)(bb) 
and (cc). In this rule, DHS is codifying the intervening statutory 
changes without modification.\25\ New 8 CFR 214.11(b)(3)(i) and (ii).
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    \25\ USCIS has implemented this change in practice. See Mem. 
from Paul Novak, Director, Vermont Service Center, USCIS, 
Trafficking Victims Protection Reauthorization Act of 2003 (Apr. 15, 
2004).
---------------------------------------------------------------------------

    (d) Exemption for victims who suffer trauma from compliance with 
reasonable requests for assistance. INA section 
101(a)(15)(T)(i)(III)(bb), 8 U.S.C. 1101(a)(15)(T)(i)(III)(bb); New 8 
CFR 214.11(h)(4)(i).
    INA section 101(a)(15)(T)(i)(III)(aa), 8 U.S.C. 
1101(a)(15)(T)(i)(III)(aa) requires that victims comply with any 
reasonable request for assistance from an LEA, but the INA exempts 
victims who are, ``unable to cooperate with a request described in item 
(aa) due to physical or psychological trauma.'' INA section 
101(a)(15)(T)(i)(III)(bb), 8 U.S.C. 1101(a)(15)(T)(i)(III)(bb). DHS 
provides in this rule that, if the applicant is unable to cooperate 
with a reasonable request due to physical or psychological trauma or 
age, an applicant who has not had contact with an LEA or who has not 
complied with any reasonable request may be exempt from the requirement 
to comply with any reasonable request for assistance in an 
investigation or prosecution. New 8 CFR 214.11(h)(4)(i). In this rule, 
DHS is codifying the intervening statutory changes without 
modification.\26\
---------------------------------------------------------------------------

    \26\ USCIS has implemented the trauma exception in practice. See 
Mem. from Paul Novak, Director, Vermont Service Center, USCIS, 
Trafficking Victims Protection Reauthorization Act of 2003 (Apr. 15, 
2004).
---------------------------------------------------------------------------

    This rule also establishes general procedures for an applicant to 
demonstrate the trauma necessary for this exception. The victim will be 
required to submit evidence of the trauma by submitting an affirmative 
statement describing the trauma and any other credible evidence. This 
includes, for instance, a signed statement from a qualified 
professional, such as a medical professional, social worker, or victim 
advocate, who attests to the victim's mental state, and medical, 
psychological, or other records which are relevant to the trauma. Id. 
USCIS reserves the authority and discretion to contact the law 
enforcement agency involved in the case, if appropriate. Id. These 
provisions are procedural and make no changes to the established legal 
order, other than to reiterate the public's statutory rights. Although 
notice-and-comment requirements do not apply to this provision, DHS 
welcomes comments from the public on this matter.
    (e) Requirement to notify HHS upon discovering that a person under 
the age of 18 may be a victim of trafficking. TVPRA 2008 section 
212(a)(2); New 8 CFR 214.11(d)(1)(iii).
    Federal agencies must notify HHS within 48 hours upon (1) 
apprehension or discovery of an unaccompanied alien child or (2) any 
claim or suspicion that an alien in custody is under 18 years of age. 
See TVPRA 2008 section 235(b)(2), codified at 8 U.S.C. 1232(b)(2). In 
addition, to facilitate the provision of public benefits to trafficking 
victims, federal agencies must notify HHS not later than 24 hours after 
discovering that a person under the age of 18 may be a victim of a 
severe form of trafficking in persons. See TVPRA 2008 section 
212(a)(2), codified at 22 U.S.C. 7105(b)(1)(G). In this rule, DHS is 
codifying the statutory changes without modification; receipt of a T 
nonimmigrant status application from a minor will result in DHS 
notifying HHS. See new 8 CFR 214.11(d)(1)(iii).
    (f) Expansion of family members an alien victim is permitted to 
apply for derivative T nonimmigrant status. INA section 
101(a)(15)(T)(ii)(I), 8 U.S.C. 1101(a)(15)(T)(ii)(I). New 8 CFR 
214.11(k)(1)(ii), (iii).
    The INA allows a principal applicant under 21 years of age to apply 
for admission in T nonimmigrant status of his or her parents and 
unmarried siblings under 18 years of age. See INA section 
101(a)(15)(T)(ii)(I), 8 U.S.C. 1101(a)(15)(T)(ii)(I). In addition, the 
INA allows any principal, regardless of age, to apply for parents or 
unmarried siblings under 18 years of age if the family member faces a 
present danger of retaliation as a result of the principal's escape 
from the severe form of trafficking in persons or his or her 
cooperation with law enforcement. See INA section 
101(a)(15)(T)(ii)(III), 8 U.S.C. 1101(a)(15)(T)(ii)(III). Finally, any 
principal, regardless of age, may apply for the adult or minor children 
of the principal's derivative family members if the derivative's child 
faces a present danger of retaliation as a result of the principal's 
escape from the severe form of trafficking or cooperation with law 
enforcement. See INA section 101(a)(15)(T)(ii)(III), 8 U.S.C. 
1101(a)(15)(T)(ii)(III).

[[Page 92290]]

    In this rule, DHS is codifying the change made by TVPRA 2003 to 
expand eligibility by allowing a victim granted T-1 nonimmigrant status 
(principal) to apply for the admission of his or her spouse, child, 
and, if the principal is under 21 years of age, his or her parent, or 
unmarried sibling under the age of 18. New 8 CFR 214.11(k)(1)(ii). In 
addition, DHS is codifying the change made by TVPRA 2003 that provides 
that, regardless of the age of the principal, if the eligible family 
member faces a present danger of retaliation as a result of the 
principal's escape from trafficking or cooperation with law 
enforcement, the principal alien can apply for the admission of his or 
her parents. New 8 CFR 214.11(k)(1)(iii). Finally, DHS is codifying the 
change made in VAWA 2013 that permits the adult or minor children of a 
principal's derivative family member to be an eligible family member if 
he or she faces a present danger of retaliation. Id. DHS is codifying 
these statutory changes without modification; notice and comment 
thereon are therefore unnecessary.\27\
---------------------------------------------------------------------------

    \27\ USCIS implemented the statutory directive to allow a T-1 to 
apply for their spouse, child, and, if the principal is under 21 
years of age, their parent, or unmarried sibling under the age of 18 
in a policy memorandum dated April 15, 2004. See Mem. from Paul 
Novak, Director, Vermont Service Center, USCIS, Trafficking Victims 
Protection Reauthorization Act of 2003 (Apr. 15, 2004). USCIS has 
also implemented the change allowing the principal, regardless of 
his or her age, to apply for the admission of parents, unmarried 
siblings under the age of 18, or the adult or minor children of 
their derivative family members if the family member faces a present 
danger of retaliation as a result of the principal's escape from 
trafficking or cooperation with law enforcement was implemented by 
USCIS in a memorandum dated July 21, 2010. See Mem., USCIS, William 
Wilberforce Trafficking Victims Protection Reauthorization Act of 
2008: Changes to T and U Nonimmigrant Status and Adjustment of 
Status Provisions; Revisions to Adjudicators Field Manual (AFM) 
Chapters 23.5 and 39 (AFM Update AD10-38) (July 21, 2010).
---------------------------------------------------------------------------

    Finally, this rule includes a procedural provision at new 8 CFR 
214.11(k)(3) requiring the principal applicant to demonstrate that the 
derivative applicant is a family member who meets one of the categories 
in new 8 CFR 214.11(k)(1)(ii)-(iii), i.e., that the family member meets 
statutory eligibility requirements as a family member accompanying or 
following to join the principal applicant. Similar to a number of other 
evidentiary requirements in this rule, the documentation requirement 
concerning eligible family members affords the public maximum 
flexibility in presenting their case to the agency. DHS nonetheless 
invites public comment on this matter.
    (g) Age-out protection for child principal applicant to petition 
for eligible family members. INA section 214(o)(5), 8 U.S.C. 
1184(o)(5). New 8 CFR 214.11(k)(5)(ii).
    TVPRA 2003 section 4(b)(2)(B) revised the INA to provide that a 
principal who files an application for T nonimmigrant status while 
under 21 years of age will continue to be eligible even if the 
principal turns 21 while the application is pending. INA section 
214(o)(5), 8 U.S.C. 1184(o)(5). DHS has revised the regulations in this 
rule to provide that a principal who was under 21 years of age at the 
time of filing for T-1 status can file an Application for Family Member 
of T-1 Recipient, Form I-914 Supplement A, to include T-4 parents even 
if the principal turns 21 years of age before the principal's T-1 
application is adjudicated. See new 8 CFR 214.11(k)(5)(ii). DHS is 
codifying this statutory change without modification; notice and 
comment thereon are therefore unnecessary.\28\
---------------------------------------------------------------------------

    \28\ USCIS has already implemented this change in a policy 
memorandum dated April 15, 2004. See Mem. from Paul Novak, Director, 
Vermont Service Center, USCIS, Trafficking Victims Protection 
Reauthorization Act of 2003 (Apr. 15, 2004).
---------------------------------------------------------------------------

    (h) The unmarried sibling of a child principal need only be under 
18 years of age when the child principal files for T-1 status. INA 
section 101(a)(15)(T)(ii)(I), 8 U.S.C. 1101(a)(15)(T)(ii)(I). New 8 CFR 
214.11(k)(5)(ii).
    TVPRA 2003 sections 4(b)(1)(B) and (b)(2) provide that a principal 
under 21 years of age may apply for admission of his or her parents and 
unmarried siblings under 18 years of age. Thus, the INA now provides 
that an unmarried sibling who is seeking status as a T-5 derivative of 
a principal T-1 applicant under 21 years of age need only be under the 
age of 18 at the time the principal T-1 applicant files for T-1 
nonimmigrant status. INA section 101(a)(15)(T)(ii)(I), 8 U.S.C. 
1101(a)(15)(T)(ii)(I). It does not matter if the unmarried sibling 
turns 18 years of age between the time the principal files his or her 
own application and before the principal files the application for his 
or her sibling. Id. The age of an unmarried sibling when USCIS 
adjudicates the T-1 application, when the unmarried sibling files the 
derivative application, when USCIS adjudicates the derivative 
application, or when the unmarried sibling is admitted to the United 
States does not affect eligibility. 8 CFR 214.11(k)(5)(ii). DHS is 
codifying this statutory change without modification; notice and 
comment thereon are therefore unnecessary.\29\
---------------------------------------------------------------------------

    \29\ USCIS has already implemented this change in a policy 
memorandum dated April 15, 2004. See Mem. from Paul Novak, Director, 
Vermont Service Center, USCIS, Trafficking Victims Protection 
Reauthorization Act of 2003 (Apr. 15, 2004).
---------------------------------------------------------------------------

    (i) A child derivative only needs to be under 21 at the time the 
principal parent filed for T-1 status. INA section 214(o)(4), 8 U.S.C. 
1184(o)(4); New 8 CFR 214.11(k)(5)(iii).
    TVPRA 2003 section 4(b)(2)(B) revised INA section 214(o)(4), 8 
U.S.C. 1184(o)(4), to provide that as long as a child derivative (T-3) 
was under 21 years of age on the date the principal T-1 parent applied 
for T-1 nonimmigrant status, he or she will continue to be classified 
as a child and allowed entry as a derivative child. DHS implements this 
statutory requirement in this rule by providing that the derivative's 
age at the time of classification or entry does not matter as long as 
the child T-3 derivative was under the age of 21 when the parent T-1 
filed for T nonimmigrant status. See new 8 CFR 214.11(k)(5)(iii). DHS 
is codifying this statutory change without modification; notice and 
comment thereon are therefore unnecessary.\30\
---------------------------------------------------------------------------

    \30\ USCIS has already implemented this change in a policy 
memorandum dated April 15, 2004. See Mem. from Paul Novak, Director, 
Vermont Service Center, USCIS, Trafficking Victims Protection 
Reauthorization Act of 2003 (Apr. 15, 2004).
---------------------------------------------------------------------------

    (j) Exemption for the public charge ground of inadmissibility. INA 
section 212(d)(13)(A), 8 U.S.C. 1182(d)(13)(A); New 8 CFR 212.16(b).
    The INA generally prohibits DHS and immigration judges from 
admitting as an immigrant or granting adjustment of status to lawful 
permanent residence to any alien who is likely to become a public 
charge at any time. See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). 
TVPRA 2003 section 4(b)(4), however, provided that inadmissibility as a 
public charge does not apply to an applicant for T nonimmigrant status. 
See INA section 212(d)(13)(A), 8 U.S.C. 1182(d)(13)(A). DHS is amending 
the regulations in this interim rule and on the form to comply with the 
statutory requirements. See new 8 CFR 212.16(b). DHS is codifying these 
statutory provisions without modification; notice and comment thereon 
are therefore unnecessary.\31\
---------------------------------------------------------------------------

    \31\ USCIS has already implemented this change in a policy 
memorandum dated April 15, 2004. See Mem. from Paul Novak, Director, 
Vermont Service Center, USCIS, Trafficking Victims Protection 
Reauthorization Act of 2003 (Apr. 15, 2004).
---------------------------------------------------------------------------

    (k) Allowing extensions of status and the process to request them 
for LEA need, exceptional circumstances, and applying for adjustment of 
status. INA

[[Page 92291]]

section 214(o)(7), 8 U.S.C. 1184(o)(7); New 8 CFR 214.11(l).
    VAWA 2005 section 821(a) requires DHS to allow extensions of T 
nonimmigrant status for law enforcement need. TVPRA 2008, section 
201(b)(1), requires DHS to allow extensions of T nonimmigrant status in 
cases of exceptional circumstances, and TVPRA 2008 section 201(b)(2) 
requires extensions for T nonimmigrants who apply for adjustment of 
status. INA section 214(o)(7), 8 U.S.C. 1184(o)(7). DHS provides in 
this rule that USCIS may grant extensions of T-1 nonimmigrant status 
beyond 4 years from the date of approval in 1-year periods from the 
date the T-1 nonimmigrant status ends, if the presence of the victim in 
the United States is necessary to assist in the investigation or 
prosecution of such activity, an extension is warranted due to 
exceptional circumstances, or the T-1 nonimmigrant has a pending 
application for adjustment of status to lawful permanent resident. New 
8 CFR 214.11(l)(1). DHS is codifying this statutory change without 
substantive modification; notice and comment thereon are therefore 
unnecessary.
    This rule also establishes general procedures for an applicant to 
demonstrate that he or she has met the requirements for an extension of 
stay including prescribing an application and supporting evidence to 
establish eligibility. New 8 CFR 214.11(l)(2)-(7). The victim will be 
required to document his or her eligibility by submitting the form 
designated by USCIS with the prescribed fee in accordance with form 
instructions before the expiration of T-1 nonimmigrant status, 
including: Evidence to support why USCIS should grant the extension; 
evidence of law enforcement need that comes directly from a law 
enforcement agency, including a new LEA endorsement; evidence from a 
law enforcement official, prosecutor, judge, or appropriate authority; 
or any other credible evidence. New 8 CFR 214.11(l)(2)-(5). An 
applicant may demonstrate exceptional circumstances by submitting an 
affirmative statement or any other credible evidence, including medical 
records, police or court records, news articles, correspondence with an 
embassy or consulate, and affidavits of witnesses. New 8 CFR 
214.11(l)(6). USCIS will automatically extend T nonimmigrant status 
when a T nonimmigrant properly files an application for adjustment of 
status, and a separate application for extension of T nonimmigrant 
status is not required. New 8 CFR 214.11(l)(7). These broad procedural 
provisions make no changes to the established legal order, other than 
to reiterate the public's statutory rights, and to allow the applicants 
to exercise such rights. DHS has therefore determined it is not 
required to publish these procedures for public notice and comment. DHS 
nevertheless welcomes comments from the public on these changes.\32\
---------------------------------------------------------------------------

    \32\ In addition, USCIS has already implemented these statutory 
requirements through policy guidance. See Mem., USCIS, Extension of 
Status for T and U Nonimmigrants; Revisions to AFM Chapter 
39.1(g)(3) and Chapter 39.2(g)(3) (AFM Update AD11-28) (Apr. 19, 
2011).
---------------------------------------------------------------------------

    (l) Time of physical presence in the CNMI counts as time admitted 
as a T nonimmigrant for establishing physical presence required at 
adjustment of status. INA section 101(a)(15)(T)(i)(II), 8 U.S.C. 
1101(a)(15)(T)(i)(II); New 8 CFR 214.11(b)(2), 245.23(a)(3)(ii).
    Title VIII, section 809 of VAWA 2013 provides that aliens in the 
CNMI are eligible for T nonimmigrant status because status in the CNMI 
meets the requirement for an alien to be physically present in the 
United States. INA section 101(a)(15)(T)(i)(II), 8 U.S.C. 
1101(a)(15)(T)(i)(II) (aliens eligible for T nonimmigrant status 
include those who are ``physically present in the . . . [CNMI] . . . on 
account of such trafficking''). This means that under the statute, when 
T nonimmigrant status was granted for someone in the CNMI, the 3-year 
continuous physical presence required for adjustment of status began to 
toll at that time, even if he or she was not actually admitted in T 
nonimmigrant status. DHS provides in this rule that if the individual 
was granted T nonimmigrant status under 8 CFR 214.11, such individual's 
physical presence in the CNMI before, on, or after November 28, 2009, 
including physical presence subsequent to the grant of T nonimmigrant 
status, is considered as equivalent to presence in the United States 
pursuant to an admission in T nonimmigrant status. New 8 CFR 
245.23(a)(3)(ii). DHS is codifying this statutory directive without 
substantive modification; notice and comment thereon are therefore 
unnecessary.
    (m) The definition of sex trafficking includes patronizing or 
soliciting of a person for the purpose of a commercial sex act. See INA 
101(a)(15)(T)(i)(I), 22 U.S.C. 7102.
    The Justice for Victims of Trafficking Act of 2015 (JVTA), Public 
Law 114-22, 129 Stat 227 (May 29, 2015), expanded the definition of sex 
trafficking at 22 U.S.C. 7102(10) to add ``patronizing or soliciting of 
a person for the purpose of a commercial sex act'' to the list of 
activities constituting sex trafficking. DHS believes the terms 
``patronizing or soliciting of a person for the purpose of a commercial 
sex act'' are clear both in terms of USCIS adjudications and LEA 
certification and do not require clarification of their intent or 
meaning in regulatory text. Because DHS is codifying this statutory 
change without modification, notice and comment on those provisions are 
unnecessary. New 8 CFR 214.11(a), (f)(1).
2. Procedural Changes Only
    Binding agency rules that do not themselves alter the substantive 
rights or interests of parties are exempt from the APA notice and 
comment requirements. 5 U.S.C. 553(b)(A); Public Citizen v. Dep't of 
State, 276 F.3d 634, 640 (D.C. Cir. 2002). Although the exception for 
procedural rules is to be construed narrowly, its purpose is clear: to 
provide agencies with flexibility to implement and modify 
administrative procedures efficiently, so long as such procedures do 
not intrude on the public's substantive rights or interests. Above, DHS 
notes that in revising its regulation to codify intervening statutory 
changes, DHS has included a number of procedural provisions that 
provide the public with maximum flexibility to exercise statutory 
rights. In addition to such provisions, DHS is also making a number of 
procedural changes, as described below and in the succeeding sections.
    This rule includes at least one change to reflect changes to agency 
organization. The 2002 interim rule provided that any Service officer 
who receives a request for T nonimmigrant status shall be referred to 
the local Service office with responsibility for investigations 
relating to victims of severe forms of trafficking in persons for a 
consultation. Former 8 CFR 214.11(v). DHS provides in this rule that a 
USCIS employee who comes into contact with an alien believed to be a 
victim of a severe form of trafficking in persons should consult with 
the ICE officials responsible for victim protection, trafficking 
investigations and prevention, and deterrence, as appropriate. New 8 
CFR 214.11(o). This change is necessary because the former INS was 
split into separate components responsible for the adjudication of 
immigration benefits and investigations and enforcement.
3. Logical Outgrowth
    A number of the changes made in this interim rule are logical 
outgrowths of the 2002 rule, and made in response to the public 
comments on that rule. When issuing a final or interim final rule 
following an interim rule, an agency must maintain ``a flexible and 
open-

[[Page 92292]]

minded attitude'' toward comments that support changing the original 
interim rule. Fed. Express Corp. v. Mineta, 373 F.3d 112, 120 (D.C. 
Cir. 2004) (quoting Nat'l Tour Brokers Ass'n v. United States, 591 F.2d 
896, 902 (D.C. Cir. 1978), and citing Advocates for Highway & Auto 
Safety v. Fed. Highway Admin., 28 F.3d 1288, 1292 (D.C. Cir. 1994)). 
The agency should change its original rule if the data before the 
agency justify the change. Substantial changes may be made so long as 
the interim final rule provided a clear signal to the affected public 
as to what changes may be made, they are in character with the original 
scheme, and they are a logical outgrowth of the notice provided. See 
id.; Methodist Hosp. of Sacramento v. Shalala, 38 F.3d 1225 (D.C. Cir. 
1994); BASF Wyandotte Corp. v. Costle, 598 F.2d 637 (1st Cir. 1979).
    The following changes made in this rule are logical outgrowths of 
the 2002 interim rule because they were suggested by commenters or they 
are clearly within the scope and in character with the original scheme 
of the interim rule. Notwithstanding the passage of time since the 2002 
interim rule was published and intervening legislation that affects the 
T nonimmigrant visa program, comments provided, the factual 
circumstances surrounding the rule, and the administration of the T 
nonimmigrant visa program have not changed to an extent that would 
render the comments on the 2002 rule not germane or otherwise 
inapplicable. As described more fully in the section-by-section 
analysis above, in each case, the justification for the change is 
either as strong as or stronger than it was in 2002. Among these 
changes are the following:
    (a) No need to actually perform labor or services to qualify as 
victim. New 8 CFR 214.11(f)(1); TVPA sections 103(9), (10), (14); 22 
U.S.C. 7102(9), (10), (14).
    (b) Removal of filing deadline. Former 8 CFR 214.11(d)(4).
    (c) Eliminating citation to United States v. Kozminski, 487 U.S. 
931 (1998), and otherwise clarifying the definition of ``involuntary 
servitude'' for purposes of TVPA section 103(9), 22 U.S.C. 7102(9). New 
8 CFR 214.11(a).
    (d) For evidence of victimization, accept LEA endorsements as any 
credible evidence. New 8 CFR 214.11(f)(1).
    (e) Remove the requirement to show no clear chance to depart the 
United States. Former 8 CFR 214.11(g)(2).
    (f) Provide a non-exhaustive list of factors used in the ``totality 
of the circumstances'' test to determine reasonableness of failure to 
cooperate with law enforcement. New 8 CFR 214.11(h)(2).
    (g) Consolidate the grounds for revocation of status for violation 
of requirements of T status from two into one ground. New 8 CFR 
214.11(m)(2)(i).
    (h) Provide for revocation of derivative nonimmigrant status if the 
family member will not apply for admission to the United States. New 8 
CFR 214.11(m)(1).
    (i) Clarify that the standard for judging a victim's refusal to 
satisfy an LEA request is not whether the victim's refusal was 
reasonable, but whether the LEA request was reasonable. New 8 CFR 
214.11(m)(2)(iii).
    (j) For evidence of compliance with an LEA request, accept any 
credible evidence and ascribe no special weight to the LEA endorsement. 
New 8 CFR 214.11(h)(3).
    (k) Changing the standard for when DHS will exercise its 
discretionary criminal waiver authority with respect to crimes that do 
not involve a link to the victimization; whereas the former standard 
allowed for discretionary waiver in ``exceptional cases'' only, the new 
standard allows for discretionary waiver in a broader category of cases 
(and in cases involving violent or dangerous crimes, only in 
``extraordinary circumstances''). New 8 CFR 212.16(b)(2).
    (l) Revise 8 CFR 212.16(b)(3), which previously provides that USCIS 
would waive a ground of inadmissibility only in exceptional cases when 
the ground of inadmissibility would prevent or limit the ability of the 
applicant to adjust to permanent resident status after the conclusion 
of 3 years. Former 8 CFR 212.16(b)(3). DHS is replacing ``exceptional 
cases'' with the term ``extraordinary circumstances.'' New 8 CFR 
212.16(b)(3).
    (m) Remove language that applicants on the wait list would maintain 
current means to prevent removal, to clarify that people can maintain 
current means or attain new means to prevent removal, in accordance 
with existing practice. Former 8 CFR 214.11(m)(2); new 8 CFR 
214.11(j)(2).
    (n) Updating nondisclosure protections for information relating to 
an applicant or beneficiary of an application for T nonimmigrant 
status. 8 U.S.C. 1367; New 8 CFR 214.11(p)(1).
4. Contrary to the Public Interest
    Finally, public notice and comment is also not required when an 
agency for good cause finds that notice and public comment procedure 
are contrary to the public interest. The good cause exception is an 
important safety valve to be used where delay would do real harm. N. 
Am. Coal Corp. v. Dir., Office of Workers' Comp. Programs, U.S. Dep't 
of Labor, 854 F.2d 386, 389 (10th Cir. 1988). To the extent DHS is 
filling any gaps in promulgating provisions to implement the new 
statutory provisions, DHS has determined that delaying the effect of 
this rule during the period of public comment is contrary to the public 
interest. Congress created the T nonimmigrant classification to protect 
victims of human trafficking in the United States and encourage victims 
to fully participate in the investigation or the prosecution of the 
traffickers. See TVPA, sec. 102(b). Since the 2002 interim rule, 
Congress enacted legislation to encourage victims of human trafficking 
to assist law enforcement. Public Law 108-193, 117 Stat. 2875 (Dec. 19, 
2003); Public Law 109-162, 119 Stat. 2960 (Jan. 5, 2006); Public Law 
109-271, 120 Stat. 750 (Aug. 12, 2006); Public Law 110-457, 122 Stat. 
5044 (Dec. 23, 2008), Public Law 113-4, 127 Stat. 54 (Mar. 7, 2013), 
and Public Law 114-22, 129 Stat 227 (May 29, 2015). Even if DHS has 
some remaining discretion in their execution, each of the specific 
changes made in the underlying law were intended to reduce the number 
of people who will be exposed to the dangers associated with human 
trafficking.
    It is contrary to the public interest to delay the changes made by 
this rule to provide for pre-promulgation public comment. For example, 
adult or minor children of the principal's derivative family members 
who face a present danger of retaliation as a result of the victim's 
escape from a severe form of trafficking or cooperation with law 
enforcement may now qualify for adjustment of status after expiration 
of their T nonimmigrant derivative status. Without this change taking 
effect immediately, family members of victims who can get nonimmigrant 
status would not be able to adjust status to that of a lawful permanent 
resident and could be required to depart the United States after their 
nonimmigrant status runs out. This would expose them to danger from 
traffickers in their home country as a result of the principal's 
cooperation with law enforcement. In order to be eligible to adjust 
status, the family member must continue to hold status at the time of 
the application. 8 CFR 245.23(b)(2). If this provision is delayed, 
there is a risk the T-6 derivative status period will expire and the 
family member will not be able to adjust status, as his or her time in 
T-6 status will have ended.
    USCIS does not have another source of authority to preserve the 
eligibility of the T-6 status of the family member to

[[Page 92293]]

adjust status in lieu of implementing this provision immediately. In 
addition to potential harm to family members and reduced incentive for 
principals to participate in the T nonimmigrant visa program, delaying 
this change would also harm law enforcement's ability to leverage the 
knowledge and experience of family members themselves. Family members 
coming to the United States from abroad may have knowledge of the 
actions of the trafficker that even the victim cooperating with the LEA 
may not know. DHS has seen situations where the assistance of the 
family members has greatly furthered the investigation. DHS has decided 
to avoid these harms by not delaying this change for a period of public 
notice and comment.

B. Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. As a result, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

C. Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. This rule will not 
result in an annual effect on the economy of $100 million or more, a 
major increase in costs or prices, or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States companies to compete with foreign-based 
companies in domestic and export markets.

D. Executive Orders 12866 and 13563

    Executive Orders 12866 (Regulatory Planning and Review) and 13563 
(Improving Regulation and Regulatory Review) direct agencies to assess 
the costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. DHS considers this to be a ``significant regulatory 
action,'' although not an economically significant regulatory action, 
under section 3(f) of Executive Order 12866. Accordingly, the Office of 
Management and Budget (OMB) has reviewed this regulation.
1. Summary
    With this interim rule, DHS incorporates in its regulations several 
statutory provisions associated with the T nonimmigrant status that 
have been passed since 2002. All statutory changes made before VAWA 
2013 have already been implemented by DHS, and codifying these changes 
in the DHS regulations will result in no additional quantitative costs 
or benefits to impacted stakeholders nor the Federal government in 
administering the T nonimmigrant status program. Ensuring that DHS 
regulations are consistent with applicable legislation will provide 
qualitative benefits. Additionally, with the enactment of VAWA 2013, 
the following legislative changes were made to the statute and later 
implemented into DHS policy: (a) Expanding the derivative categories of 
family members that are eligible for derivative T nonimmigrant status; 
and (b) providing a technical fix to clarify that physical presence in 
the CNMI while in T nonimmigrant status will count as continuous 
presence in the United States for purposes of adjustment of status. DHS 
will assess the impact of the statutory provisions that will be 
codified into regulation in this interim rule. In addition, DHS is 
making several discretionary changes that will: (1) Clarify DHS policy 
in adjudicating T nonimmigrant applications; (2) eliminate a redundant 
requirement to include three passport-style photographs with 
applications; and, (3) make the T nonimmigrant status more accessible 
to victims of severe forms of trafficking in persons and their eligible 
family members. DHS estimates the statutory and discretionary changes 
made in this interim rule will result in the following impacts:
     A per application opportunity cost of time of $33.92 for 
the T-1 nonimmigrant principal alien to complete and submit the 
Application for Family Member of T-1 Recipient, Form I-914 Supplement 
A, in order to apply for children (adult or minor) of the principal's 
derivative family members if the derivative's child faces a present 
danger of retaliation as a result of the victim's escape from a severe 
form of trafficking and/or cooperation with law enforcement.\33\ The 
cost is due to the VAWA 2013 statutory change that permits eligible 
children of the principal's derivative relatives to be admitted under 
the T-6 classification. DHS has no basis to project the population of 
children of derivative family members that may be eligible for the new 
T-6 nonimmigrant classification. Like current T nonimmigrant derivative 
classifications, the new T-6 visa classification is not subject to a 
statutory cap.
---------------------------------------------------------------------------

    \33\ There is no filing fee for the Form I-914 and its 
supplements. The opportunity cost of time refers to the estimated 
cost associated with the time it takes for an individual to complete 
and file the Form I-914 and its supplements.
---------------------------------------------------------------------------

     An individual total cost of $89.70 for aliens who become 
eligible to apply for principal T-1 nonimmigrant status due to the 
discretionary change that removes the filing deadline for aliens 
trafficked before October 28, 2000. The total cost includes the 
opportunity cost associated with pulling together supporting evidence 
and filing the Application for T Nonimmigrant Status, Form I-914, and 
the time and travel costs associated with submitting biometrics. If the 
applicant includes the Declaration of Law Enforcement Office for Victim 
of Trafficking in Persons, Form I-914 Supplement B in the application, 
there is an opportunity cost of $149.70 for the law enforcement worker 
that completes that form. DHS has no way of predicting how many victims 
physically present in the United States may now be eligible for T-1 
nonimmigrant status as a result of removing the filing deadline. Those 
that are newly eligible for T-1 nonimmigrant status as a result of 
removing the date restriction will still be subject to the statutory 
cap of 5,000 T-1 nonimmigrant visas allotted per fiscal year.
     An individual total cost of $89.70 for victims trafficked 
abroad that will now become eligible to apply for T nonimmigrant status 
due to the discretionary change that expands DHS's interpretation of 
the physical presence requirement. As previously described, the total 
cost includes both the opportunity of time cost and estimated travel 
cost incurred with filing Form I-914 and submitting biometrics. If the 
applicant includes the Declaration of Law Enforcement Office for Victim 
of Trafficking in Persons, Form I-914 Supplement B in the application, 
there is an opportunity cost of $149.70 for the law enforcement worker 
that completes that form. DHS is unable to project the size of this new 
eligible population, but note that all victims newly eligible for T-1 
nonimmigrant status due to this change are still subject to the 
statutory cap of

[[Page 92294]]

5,000 T-1 nonimmigrant visas allotted per fiscal year.
    Based on recent filing volumes, DHS estimates total cost savings of 
$56,130 for T nonimmigrant applicants and their eligible family members 
as a result of the discretionary change that eliminates the requirement 
to submit three passport-style photographs with their T nonimmigrant 
applications. In addition, the interim rule will provide various 
qualitative benefits for victims of trafficking, their eligible family 
members, and law enforcement agencies investigating trafficking 
incidents. These qualitative benefits result from making the T 
nonimmigrant classification more accessible, reducing some burden 
involved in applying for this status in certain cases, and clarifying 
the process by which DHS adjudicates and administers the T nonimmigrant 
benefit.
2. Background
    Congress created the T nonimmigrant status in the TVPA of 2000. The 
TVPA provides various means to combat trafficking in persons, including 
tools for LEAs to effectively investigate and prosecute perpetrators of 
trafficking in persons. The TVPA also provides protection to victims of 
trafficking through immigration relief and access to federal public 
benefits. DHS published an interim final rule on January 31, 2002 
implementing the T nonimmigrant status and the provisions put forth by 
the TVPA 2000.\34\ The 2002 interim final rule established the 
eligibility criteria, application process, evidentiary standards, and 
benefits associated with obtaining T nonimmigrant status.
    T nonimmigrant status is available to victims of severe forms of 
trafficking in persons who comply with any reasonable request for 
assistance from LEAs in investigating and prosecuting the perpetrators 
of these crimes. T nonimmigrant status provides temporary immigration 
benefits (nonimmigrant status and employment authorization) and a 
pathway to permanent resident status, provided that established 
criteria are met. Additionally, if a victim obtains T nonimmigrant 
status then certain eligible family members may also apply to obtain T 
nonimmigrant status.\35\
    Table 1 provides the number of T nonimmigrant application receipts, 
approvals, and denials for principal victims and derivative family 
members for fiscal year 2005 through fiscal year 2015. Although the 
maximum annual number of T nonimmigrant visas that may be granted is 
5,000 for T-1 principal aliens per fiscal year, this maximum number has 
never been reached and is not projected to be reached in the 
foreseeable future under current practice.\36\
---------------------------------------------------------------------------

    \34\ See 67 FR 4784.
    \35\ The current T nonimmigrant categories are: T-1 (principal 
alien), T-2 (spouse), T-3 (child), T-4 (parent), and T-5 (unmarried 
sibling under 18 years of age). This interim rule creates a new T 
nonimmigrant category, T-6 (adult or minor child of a principal's 
derivative).
    \36\ There is no statutory cap for grants of T nonimmigrant 
derivative status or visas.

                                                Table 1--USCIS Processing Statistics for Form I-914 \37\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                        Victims  (T-1)              Family of victims  (T-2,3,4,5)               I-914 Totals
                     FY                      -----------------------------------------------------------------------------------------------------------
                                               Receipts    Approved     Denied     Receipts    Approved     Denied     Receipts    Approved     Denied
--------------------------------------------------------------------------------------------------------------------------------------------------------
2005........................................         379         113         321          34          73          21         413         186         342
2006........................................         384         212         127          19          95          45         403         307         172
2007........................................         269         287         106          24         257          64         293         544         170
2008........................................         408         243          78         118         228          40         526         471         118
2009........................................         475         313          77         235         273          54         710         586         131
2010........................................         574         447         138         463         349         105       1,037         796         243
2011........................................         967         557         223         795         722         137       1,762       1,279         360
2012........................................         885         674         194         795         758         117       1,680       1,432         311
2013........................................         799         848         104       1,021         975          91       1,820       1,823         195
2014........................................         944         613         153         925         788         105       1,869       1,401         258
2015........................................       1,062         610         294       1,162         694         192       2,224       1,304         486
--------------------------------------------------------------------------------------------------------------------------------------------------------

     From the publication of the interim final rule in 2002 through 
2016, Congress passed various statutes amending the original TVPA 2000. 
These include: The Trafficking Victims Protection Reauthorization Act 
of 2003 (TVPRA 2003), the Violence Against Women and Department of 
Justice Reauthorization Act of 2005 (VAWA 2005), the William 
Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 
(TVPRA 2008), and the Violence Against Women Reauthorization Act of 
2013 (VAWA 2013). After the passage of each of the statutes, as noted 
in section I.A.1 of this preamble, USCIS issued policy and guidance 
memorandum to both implement the provisions of the Acts and to ensure 
compliance with the legal requirements of the Acts.\38\
---------------------------------------------------------------------------

    \37\ Approved and denied volumes may not sum to the receipts in 
a given fiscal year because the processing and final decision for T 
nonimmigrant status applications may overlap fiscal years. USCIS 
records indicate that processing an application for T nonimmigrant 
status requires an estimated 6 to 9 months. Data source for the 
table: Performance Analysis System (PAS), USCIS Office of 
Performance and Quality (OPQ), Data Analysis and Reporting Branch 
(DARB).
    \38\ See Mem. from Paul Novak, Director, Vermont Service Center, 
USCIS, Trafficking Victims Protection Reauthorization Act of 2003 
(Apr. 15, 2004); see also Mem., USCIS, William Wilberforce 
Trafficking Victims Protection Reauthorization Act of 2008: Changes 
to T and U Nonimmigrant Status and Adjustment of Status Provisions; 
Revisions to AFM Chapters 23.5 and 39 (AFM Update AD10-38) (July 21, 
2010); Mem., USCIS, Extension of Status for T and U Nonimmigrants; 
Revisions to AFM Chapter 39.1(g)(3) and Chapter 39.2(g)(3) (AFM 
Update AD11-28) (Apr. 19, 2011); Mem., USCIS, New T Nonimmigrant 
Derivative Category and T and U Nonimmigrant Adjustment of Status 
for Applicants from the Commonwealth of the Northern Mariana 
Islands; Revisions to Chapters 23.5 and Chapter 39.2 (AFM Update 
AD14-05) (Apr. 15, 2015).
---------------------------------------------------------------------------

    This interim final rule codifies DHS policy and guidance from these 
statutes into the Code of Federal Regulations (CFR). The statutory 
changes from TVPRA 2003, TVPRA 2008, and VAWA 2005 are reflected in 
Table 2, below. Codifying existing USCIS policy and guidance ensures 
that the regulations are consistent with the applicable legislation, 
and that the general public has access to these policies through the 
CFR without locating and reviewing multiple policy memoranda. DHS 
provides the impact of these provisions in Table 2 assuming a pre-
statutory baseline per OMB Circular A-4 requirements.

[[Page 92295]]



    Table 2--Summary of Impacts to the Regulated Population of TVPRA 2003, TVPRA 2008 and VAWA 2005 Statutory
                                      Changes Codified by This Interim Rule
----------------------------------------------------------------------------------------------------------------
                                                                  Expected cost of the   Expected benefit of the
              Provision                     Current policy            interim rule             interim rule
----------------------------------------------------------------------------------------------------------------
Expanding the definition and           LEA includes State and   None...................  Provides clarity and
 discussion of LEA (added by VAWA       local law enforcement                             consistency in DHS
 2005).                                 agencies.                                         practice with DHS
                                                                                          regulations will lead
                                                                                          to a qualitative
                                                                                          benefit providing
                                                                                          transparency to both
                                                                                          the victims of
                                                                                          trafficking and USCIS
                                                                                          adjudicators.
Removing the requirement that          Family members may be    No additional costs,     Provides a broader
 eligible family members must face      eligible for T           other than the           definition of an
 extreme hardship if the family         nonimmigrant status      opportunity cost of      eligible family member
 member is not admitted to the United   without having to show   time to file Form I-     and may increase the
 States or was removed from the         extreme hardship.        914 Supplement A.        number of eligible
 United States (removed by VAWA 2005).                           However, DHS             family members.
                                                                 reiterates that this
                                                                 is a voluntary
                                                                 provision.
Raising the age at which the           The provision increased  None...................  Provides a benefit by
 applicant must comply with any         the minimum age                                   acknowledging the
 reasonable request by an LEA for       requirement from 15                               significance of an
 assistance in an investigation or      years to 18 years of                              applicant's maturity
 prosecution of acts of trafficking     age.                                              in understanding the
 in persons (added by TVPRA 2003).                                                        importance of
                                                                                          participating with an
                                                                                          LEA.
Exempting T nonimmigrant applicants    DHS may grant T          No additional costs,     Victims who are likely
 from the public charge ground of       nonimmigrant status to   other than the           to become a public
 inadmissibility (added by TVPRA        applicants even if       opportunity cost of      charge are able to
 2003).                                 they are likely to       time to file Form I-     apply for T
                                        become a public charge.  914 and if necessary     nonimmigrant status
                                                                 Supplement B.            and receive the
                                                                                          benefits associated
                                                                                          with that status.
Exemptions to an applicant's           Applicants are exempt    None...................  Provides a benefit by
 requirement, to comply with any        from the requirement                              acknowledging the
 reasonable request by an LEA (added    to comply with any                                significance of an
 by TVPRA 2008).                        reasonable request by                             applicant's mental
                                        an LEA in cases where                             capacity in
                                        the applicant is                                  understanding the
                                        unable to comply, due                             importance of
                                        to physical or                                    participating with an
                                        psychological trauma.                             LEA.
Limiting duration of T nonimmigrant    Extends the duration of  None...................  Provides T
 status but providing extensions for    T nonimmigrant status                             nonimmigrants status
 LEA need, for exceptional              from 3 years to 4                                 for an additional year
 circumstances, and for the pendency    years, but limits the                             with the possibility
 of an application for adjustment of    status to 4 years                                 of extension.
 status (VAWA 2005 and TVPRA 2008).     unless an applicant
                                        can qualify for an
                                        extension.
Expanding the regulatory definition    DHS will consider        None...................  Provides a broader
 of physical presence on account of     victims as having met                             definition of physical
 trafficking (added by TVPRA 2008).     the physical presence                             presence on account of
                                        requirement if they                               trafficking and may
                                        were allowed entry                                increase the number of
                                        into the United States                            eligible applicants.
                                        for participation in
                                        investigative or
                                        judicial processes
                                        associated with an act
                                        or perpetrator
                                        trafficking for
                                        purposes of
                                        eligibility for T
                                        nonimmigrant
                                        classification.
Allowing principal applicants under    Unmarried siblings       No additional costs,     Provides a broader
 21 years of age to apply for           under 18 years of age    other than the           definition of eligible
 derivative T nonimmigrant status for   and parents of the       opportunity cost of      family member and may
 unmarried siblings under 18 years      principal applicant      time to file Form I-     increase the number of
 and parents as eligible derivative     may now be eligible      914 Supplement A on      eligible family
 family members (added by TVPRA 2003).  for T nonimmigrant       behalf of the            members.
                                        status under the T-4     principal's unmarried
                                        and T-5 derivative       siblings under 18
                                        category, if the         years of age and
                                        principal applicant is   parents.
                                        under age 21.
Providing age-out protection for       A principal applicant    None...................  Provides a qualitative
 child principal applicants to apply    who was under 21 years                            benefit by removing an
 for eligible family members (added     of age at the time of                             age-out restriction,
 by TVPRA 2003).                        filing the Form I-914                             allowing principal
                                        can file Form I-914                               applicants to apply
                                        Supplement A on behalf                            for parents and
                                        of eligible family                                unmarried siblings
                                        members, including                                under age 18, even if
                                        parents and unmarried                             the principal
                                        siblings under age 18,                            applicant turns 21
                                        even if the principal                             years of age before
                                        alien turns 21 years                              the T-1 application is
                                        of age before the                                 adjudicated.
                                        principal T-1
                                        application is
                                        adjudicated.

[[Page 92296]]

 
Providing age-out protection for       An unmarried child of    None...................  Provides a qualitative
 child derivatives (added by TVPRA      the principal who was                             benefit by removing an
 2003).                                 under age 21 on the                               age-out restriction,
                                        date the principal                                allowing a principal
                                        applied for T-1                                   applicant parent to
                                        nonimmigrant status                               apply for a child as a
                                        may continue to                                   derivative
                                        qualify as an eligible                            beneficiary, even if
                                        family member, even if                            the child reaches age
                                        he or she reaches age                             21 while the
                                        21 while the T-1                                  principal's T-1
                                        application is pending.                           application is
                                                                                          pending.
Allowing principal applicants of any   Allows any principal     No additional costs,     If eligible, unmarried
 age to apply for derivative T          applicant, regardless    other than the           siblings under 18
 nonimmigrant status for unmarried      of age, to apply for     opportunity cost of      years of age and
 siblings under 18 years of age and     derivative T             time to file Form I-     parents of principal
 parents as eligible family members     nonimmigrant status      914 Supplement A, on     applicants may qualify
 if the family member faces a present   for parents or           behalf of the            for T-4 and T-5
 danger of retaliation as a result of   unmarried siblings       derivative's unmarried   nonimmigrant status,
 the principal applicant's escape       under 18 years of age    siblings under 18        and obtain the
 from a severe form of trafficking or   if they face a present   years of age and         immigration benefits
 cooperation with law enforcement       danger of retaliation.   parents.                 that accompany that
 (added by TVPRA 2008).                                                                   status. In addition,
                                                                                          LEAs may benefit if
                                                                                          more victims come
                                                                                          forward to report
                                                                                          trafficking crimes.
Care and custody of unaccompanied      Federal agencies must    DHS may have some        Provides a qualitative
 children with the HHS (added by        notify HHS upon          additional               benefit by enabling
 TVPRA 2008).                           apprehension or          administrative costs     the health and well-
                                        discovery of an          associated with          being of a minor
                                        unaccompanied child or   informing HHS of         victimized by
                                        any claim or suspicion   unaccompanied            trafficking. These
                                        that an individual in    children. As a result,   victims also obtain
                                        custody is under 18      HHS may have some        federally funded
                                        years of age. Minors     additional costs in      benefits and services.
                                        are eligible to          providing benefits and
                                        receive federally        services to the
                                        funded benefits and      affected minors.
                                        services as soon as
                                        they are identified by
                                        HHS as a possible
                                        victim of trafficking.
----------------------------------------------------------------------------------------------------------------

3. Changes Implemented in This Interim Rule
    This regulatory evaluation will provide a more in-depth analysis of 
the costs and benefits of the two statutory provisions added by VAWA 
2013 and implemented in this interim rule. In addition, this analysis 
will address the impacts of several new discretionary provisions DHS is 
making in this interim rule.
a. Statutory Provisions
    The legislative changes to the T nonimmigrant statutes added by 
VAWA 2013 and addressed in this analysis include:
     Allowing principal applicants of any age to apply for 
derivative T nonimmigrant status for children (adult or minor) of the 
principal's derivative family members if the derivative's child faces a 
present danger of retaliation as a result of the applicant's escape 
from a severe form of trafficking or cooperation with law enforcement. 
See INA section 101(a)(15)(T)(ii)(III), 8 U.S.C. 
1101(a)(15)(T)(ii)(III); new 8 CFR 214.11(k)(1)(iii). Harmonizing with 
current allowances for T derivatives, this interim rule will also 
permit those classified as children of derivative aliens to apply for 
adjustment of status under INA section 245(l), 8 U.S.C 1255(1); new 8 
CFR 245.23(b)(2).
     Implementing a technical fix to clarify that presence in 
the Commonwealth of the Northern Mariana Islands (CNMI) after being 
granted T nonimmigrant status qualifies toward the requisite physical 
presence requirement for adjustment of status to lawful permanent 
resident. See section 705(c) of the Consolidated Natural Resources Act 
of 2008 (CNRA), Title VII, Public Law 110-229, 122 Stat. 754 (May 8, 
2008); new 8 CFR 245.23(a)(3)(ii).
    VAWA 2013 expanded the eligibility of family members who may 
qualify for T nonimmigrant derivative status. The new statutory 
provision allows for the eligibility of the children (adult or minor) 
of the principal's derivative family members if the derivative's child 
faces a present danger of retaliation as a result of the victim's 
escape from a severe form of trafficking or cooperation with law 
enforcement. Family members that may be eligible as a result of this 
new provision could, for example, include: Stepchild(ren) (the adult or 
minor child(ren) of the principal's spouse); grandchild(ren) (the adult 
or minor child(ren) of the principal's child); niece(s) or nephew(s) 
(the adult or minor child(ren) of the principal's sibling); and/or 
sibling(s) (the adult or minor child of the principal's parent). The 
principal must file an Application for Family Member of T-1 Recipient, 
Form I-914 Supplement A, on behalf of these eligible family members, in 
accordance with form instructions. Evidence that demonstrates a present 
danger of retaliation to the family member must be included with the 
application.
    New 8 CFR 214.1(a)(7) classifies the principal and eligible family 
members (including the new category as set forth by VAWA 2013) as:
     T-1 (principal alien);
     T-2 (spouse);
     T-3 (child);
     T-4 (parent);
     T-5 (unmarried sibling under 18 years of age); or
     T-6 (adult or minor child of a principal's derivative).
    The final relevant provision in VAWA 2013 is a clarification that 
presence in the CNMI after being granted T nonimmigrant status 
qualifies toward the physical presence requirement for adjustment of 
status. T nonimmigrants may adjust to lawful permanent resident status 
after three years of continuous

[[Page 92297]]

physical presence in the United States. See INA section 245(l)(1)(A), 8 
U.S.C. 1255(l)(1)(A). Prior to the enactment of VAWA 2013, an approved 
T nonimmigrant in the CNMI would not accrue time that counts toward the 
three year continuous physical presence requirement for adjustment of 
status until on or after November 28, 2009. Title VII of the CNRA 
extended, with limited exceptions, the U.S. immigration laws to the 
CNMI, effective November 28, 2009. Before the U.S. immigration laws 
were in effect in the CNMI, aliens in the CNMI had to travel to Guam or 
the United States to be admitted as a T nonimmigrant. In addition, the 
CNRA noted that time in the CNMI prior to the date the U.S. immigration 
laws became effective would not count as time in the United States. DHS 
data does not track aliens who were admitted as T nonimmigrants in the 
United States or Guam who relocated to the CNMI, and who may have been 
unable to adjust to lawful permanent resident because their time in the 
CNMI prior to November 28, 2009 did not qualify towards the three year 
physical presence requirement. VAWA 2013 added an exception to this 
provision so that time in the CNMI prior to November 28, 2009 would 
count as time admitted as a T nonimmigrant for establishing physical 
presence for purposes of adjustment of status to lawful permanent 
resident. See new 8 CFR 245.23(a)(3)(ii).
b. Discretionary Changes
    In addition to the statutory provisions, DHS will make the 
following discretionary changes to DHS regulations governing the T 
nonimmigrant classification:
     Specify how USCIS will exercise its waiver authority over 
criminal inadmissibility grounds; new 8 CFR 212.16(b)(3).
     Discontinue the practice of weighing evidence as primary 
and secondary in favor of an ``any credible evidence'' standard; 8 CFR 
214.11(f); new 8 CFR 214.11(d)(2)(ii) and (3).
     Eliminate the requirement that an applicant provide three 
passport-style photographs; 8 CFR 214.11(d)(2)(ii); new 8 CFR 
214.11(d)(4).
     Remove the filing deadline for those victimized prior to 
October 28, 2000; 8 CFR 214.11(d)(4).
     Removes the restriction in the 2002 interim rule that an 
eligible applicant who is placed on the waiting list shall maintain his 
or her current means to prevent removal (deferred action, parole, or 
stay of removal) and any employment authorization, subject to any 
limits imposed on that. See former 8 CFR 214.11(m)(2). DHS will clarify 
that applicants on the waiting-list can either maintain their ``current 
means'' to prevent removal or find a ``new means'' to attain relief 
from removal. This will provide USCIS with avenues to exercise its 
discretion to provide temporary assistance to applicants on a case-by-
case basis, even if applicants have no current means of protection if 
the statutory cap is met in a given fiscal year; new 8 CFR 
214.11(j)(1).
     Remove the current regulatory ``opportunity to depart'' 
requirement for those who escaped traffickers before law enforcement 
became involved; former 8 CFR 214.11(g)(2).
     Provide guidance on meeting the definition of ``severe 
forms of trafficking in persons'' in those cases where an individual 
has not actually performed labor or services, or a commercial sex act; 
new 8 CFR 214.11(f)(1).
     Addresses situations where trafficking has occurred 
abroad, but the victim can potentially meet the physical presence 
eligibility requirement; new 8 CFR 214.11(g)(3).
     Update DHS regulations to reflect the creation of DHS, and 
to implement current standards of regulatory organization, plain 
language, and USCIS efforts to transform its customer service 
practices.
4. Benefits
a. Benefits of Statutory Provisions
    A qualitative benefit is realized by incorporating all the 
statutory provisions that are current USCIS practice in DHS 
regulations. The addition of these provisions to DHS regulations is 
necessary to ensure: That DHS regulations are consistent with 
applicable legislation; that no ambiguity exists between current DHS 
practices and the CFR; and that the general public is able to access 
DHS practices via the CFR without having to consult multiple policy 
memoranda.
    The VAWA 2013 provision expanding the derivative eligibility to the 
children (adult or minor) of the principal's derivative family members 
provides an additional qualitative benefit for trafficking victims and 
their eligible family members. Specifically, incorporating this 
statutory change in DHS regulations upholds the United States Federal 
Government's commitment to promoting family unity in its immigration 
laws. Additionally, this provision may provide a qualitative benefit to 
law enforcement agencies that are investigating trafficking crimes, as 
it provides them with another method to incentivize victims to report 
these crimes who otherwise may not have because they feared retaliation 
against their family members.
    In the event the adult or minor children of the principal's 
derivative family members face a present danger of retaliation as a 
result of the victim's escape from a severe form of trafficking or 
cooperation with law enforcement, they may now qualify for T 
nonimmigrant derivative status. Prior to this expansion of derivative 
eligibility these family members may have been exposed to danger as a 
result of the victims coming forward to report the trafficking 
incidents. This may have acted as a disincentive for victims to report 
these crimes and to seek assistance. Expanding derivative eligibility 
to these family members may induce trafficking victims to seek LEA 
assistance and to cooperate with investigations of trafficking crimes. 
As a result, trafficking victims, their eligible family members, and 
law enforcement agencies investigating trafficking abuses all benefit 
from this statutory expansion.
    The final VAWA 2013 provision provides a benefit by addressing a 
gap in immigration law as it pertains to the CNMI to clarify that 
presence as a T nonimmigrant in the CNMI before or after November 28, 
2009 qualifies toward the three-year physical presence requirement for 
adjustment of status to lawful permanent residence. Prior to this 
technical fix, the CNRA provision stated that time in the CNMI before 
November 28, 2009 did not count as time in the United States. This may 
have been a barrier to T nonimmigrants residing in the CNMI who wished 
to adjust status but whose time in the CNMI prior to this date did not 
qualify toward the three year physical presence requirement. With the 
enactment of VAWA 2013, time spent as a T nonimmigrant in the CNMI 
before November 28, 2009 counts toward the physical presence 
requirement for adjustment of status to lawful permanent residence.
    DHS is unable to determine how many T nonimmigrants may have been 
unable to adjust to permanent residence status as a result of the prior 
CNRA provision. Those in the CNMI had to travel to Guam or other parts 
of the United States to be admitted as a T nonimmigrant prior to the 
replacement of the immigration laws of the CNMI with those of the 
United States under the CNRA. DHS data does not track individuals who 
were admitted as T nonimmigrants in the United States (including Guam) 
who relocated to the CNMI, and who may have been unable to adjust to 
lawful permanent resident because their time in the CNMI prior to 
November 28, 2009 did not qualify

[[Page 92298]]

towards the three-year physical presence requirement. DHS believes this 
to have been a rare occurrence, however, and therefore anticipates that 
any additional population adjusting status solely as a result of this 
change will be small, if any.
b. Benefits of Discretionary Changes
    DHS will eliminate the current requirement that three passport-
style photographs be submitted with T nonimmigrant applications. This 
is a requirement for both principal alien victims and their eligible 
family members. Enhancements in USCIS operations as it pertains to 
collecting biometrics make the requirement to submit these photographs 
redundant. T nonimmigrant applicants have their photographs taken when 
they visit an application support center (ASC) to submit biometrics. 
The photographs taken at the ASC replaces the current requirement to 
submit three passport-style photographs with T nonimmigrant 
applications. DHS, in our ongoing efforts to review our regulations and 
reduce unnecessary and/or redundant burdens, is eliminating the 
requirement to submit these photographs, resulting in quantitative 
savings for applicants. According to the findings of Department of 
State (DOS), a passport-style photograph has an average cost of 
$10.00.\39\ Therefore, each T nonimmigrant status applicant would save 
an estimated $30.00, the cost of three photographs.
---------------------------------------------------------------------------

    \39\ DOS estimates an average cost of $10 per passport photo in 
the PRA Supporting Statement found under OMB control number 1450-
0004. A copy of the Supporting Statement is found on Reginfo.gov at: 
https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201102-1405-001 (see question #13 of the Supporting Statement).
---------------------------------------------------------------------------

    This $30.00 savings would benefit all future T nonimmigrant 
principal and derivative applicants. As noted throughout this analysis, 
DHS is unable to reasonably project how future filing volumes may be 
affected by the statutory and discretionary changes implemented by this 
interim rule. In an effort, however, to calculate total cost savings to 
applicants by no longer having to submit three photographs DHS averaged 
total annual receipts for Fiscal Years 2011 through 2015. (Refer to 
Table 1 in this analysis to view all T nonimmigrant receipts since 
Fiscal Year 2005.) DHS assumes that average filing volumes for Fiscal 
Years 11 through 15 offer a reasonable expectation of what future 
receipts would be under current DHS process. DHS does not have the 
information to forecast populations that may result from the changes 
made in this interim rule. Using the average of Fiscal Years 11 through 
15 receipts, DHS estimates expects that annual receipts for T 
nonimmigrant status applications (both principal and derivative 
applicants) would be approximately 1,871.\40\ Again, the assumed volume 
of 1,871 is calculated without considering any unforeseeable increases 
in receipts that may result from new population groups that will be 
eligible for T nonimmigrant status in this interim rule. Therefore, at 
a minimum, DHS expects the cost savings from eliminating the photograph 
requirement to be $56,130.\41\
---------------------------------------------------------------------------

    \40\ Average of FY 11 through 15 total receipts.
    \41\ Calculation: 1,871 x $30.00 = $56,130.
---------------------------------------------------------------------------

    In addition to this quantitative benefit, the remaining 
discretionary changes result in qualitative benefits for victims of 
trafficking and their eligible family members, and also for law 
enforcement agencies in their efforts to combat and investigate 
trafficking crimes. The provision relating to the discretion of USCIS 
to administer its waiver authority over criminal inadmissibility 
grounds provides benefits by clarifying USCIS policy as it relates to 
USCIS waiver authority and the granting of deferred action. 
Additionally, removing the regulatory restrictions on methods available 
to protect applicants on the waiting list from removal will allow DHS 
the discretion to grant deferred action to applicants on the waiting 
list who currently have no current means to prevent removal.
    Additionally, amending DHS regulations to clarify that a trafficked 
individual may be eligible for T nonimmigrant status even though he or 
she did not perform labor or services, or a commercial sex act will 
also provide benefits for the impacted population. This amendatory 
language is meant to clarify when an individual can satisfy the 
definition of being a victim of ``severe forms of trafficking in 
persons,'' even if the victim escaped his or her traffickers prior to 
performing the labor, services, or commercial sex acts intended. This 
clarification will be a qualitative benefit to applicants who, prior to 
the clarification, may have experienced confusion as to whether they 
are eligible for T nonimmigrant status if they have not performed the 
services mentioned. Likewise, the clarification will provide clear 
guidance to DHS adjudicators in their evaluations of applications in 
which this might occur.
    DHS is also eliminating the filing deadline for those who were 
victimized prior to October 28, 2000. See 8 CFR 214.11(d)(4). According 
to current DHS regulations, victims of a severe form of trafficking in 
persons whose victimization occurred prior to this deadline must have 
filed a completed application for T nonimmigrant status within one year 
of March 4, 2002, the effective date of the 2002 interim final rule. 
The deadline was originally put in place because of uncertainty of how 
many victims may come forward to apply for T nonimmigrant benefits. The 
reasoning at the time was that there could be a large influx of 
applicants for T nonimmigrant benefits, which could have adversely 
impacted timely administration and adjudication of the program if no 
deadline were in place. This concern never materialized, however, and 
annual T nonimmigrant application receipts have remained well under the 
cap of 5,000 T-1 principal aliens. Therefore, DHS will remove the 
filing deadline for those victims that were trafficked before October 
28, 2000. This will make the T nonimmigrant status accessible to those 
victimized prior to the enactment of TVPA that were unable to apply for 
T nonimmigrant status prior to the filing deadline. DHS is unable to 
estimate how many individuals may apply once the deadline is removed, 
although it is believed the receipts would be small given the amount of 
time that has passed.
    The discretionary provision eliminating the requirement that 
victims of trafficking must show they had no clear opportunity to 
depart from the United States will provide another benefit to potential 
applicants. Currently, victims of trafficking who escaped their 
traffickers prior to LEA involvement in the matter must submit evidence 
showing they had no clear chance to leave the United States once they 
became free of their traffickers. Such evidence may include, but is not 
limited to, demonstrating the victim had limited ability to depart due 
to circumstances attributable to the trafficking, such as trauma, 
injury, lack of funds, or seizure of travel documents by the 
traffickers. See 8 CFR 214.11(g)(2). DHS has determined that this 
requirement places an unnecessary additional burden on victims of 
trafficking who wish to apply for T nonimmigrant status. Removing this 
evidentiary requirement will provide time and cost savings to the 
applicant by not having to procure and provide such evidence to USCIS; 
additionally, USCIS may realize some time savings by not having to 
review these documents during case adjudication. DHS did not have the 
necessary data to estimate the monetary value of such savings.

[[Page 92299]]

    DHS also will discontinue the practice of labeling evidence as 
primary and secondary, in favor of requiring ``any credible evidence'' 
the applicant may possess to show that they were a victim of a severe 
form of trafficking and have complied with any reasonable request to 
assist an LEA. Currently, DHS considers only the submission of the 
Declaration of Law Enforcement Officer, Form I-914 Supplement B, to be 
primary evidence. All other evidence the applicant may submit is 
labeled as secondary evidence. This distinction has proven to be 
confusing for both applicants and law enforcement officials, because 
the Supplement B is not a required form to be submitted by applicants. 
Furthermore, LEAs have expressed concern that because the Supplement B 
is the only evidence considered by DHS to be ``primary evidence,'' the 
mere fact that an LEA completes the form may be the primary ground 
relied on by DHS in granting status to an applicant seeking T 
nonimmigrant benefits. As a result of this misinterpretation, some LEAs 
have been reluctant to complete a Supplement B on behalf of applicants. 
DHS believes removing the ``primary evidence'' and ``secondary 
evidence'' labels currently in place will reduce confusion for 
applicants and alleviate the concerns of LEAs. LEAs may then be more 
likely to complete the Supplement B for an applicant, which, although 
it would no longer have the label of ``primary evidence,'' would still 
contribute to the alien's overall application for T nonimmigrant 
benefits. In turn, the victim may be more willing to cooperate if he or 
she feels more confident the LEA will recognize this assistance.
    Lastly, DHS will amend the regulations to provide guidance on how 
victims may still qualify for T nonimmigrant status in instances when 
the trafficking occurred abroad. Though DHS anticipates there will be 
limited circumstances when trafficking occurred abroad that could still 
lead to T nonimmigrant eligibility, it has identified some instances 
when this might occur and discusses them in this interim rule. This 
expanded interpretation of the physical presence requirement will be a 
benefit to any additional aliens and their eligible family members who 
may now become eligible for T nonimmigrant status. In addition, LEAs 
will benefit from having access to additional eligible populations that 
can provide key information and assistance to those investigating 
trafficking crimes. DHS is unable to project how many victims may 
become eligible for T nonimmigrant status as a result of this change.
5. Costs
a. Costs of Statutory Provisions
    The majority of the changes to DHS regulations made to incorporate 
statutory provisions result in no additional costs to victims of severe 
forms of trafficking or their eligible family members. Since the 
application volume for the T nonimmigrant program has never reached 
capacity, we expect that any additional costs to DHS in its 
administration of the T nonimmigrant program will be minimal. The 
provisions created as a result of congressional action in the years 
following the 2002 interim final rule and prior to the VAWA 2013 are 
current DHS policy and therefore no changes or amendments to current 
practice are necessary as a result of codifying them in DHS 
regulations. Likewise, the provision in VAWA 2013 clarifying that 
presence in the CNMI qualifies toward the requisite physical presence 
requirement for adjustment of status will result in no additional 
costs.
    The VAWA 2013 provision expanding T nonimmigrant derivative status 
eligibility to the children (adult or minor) of the principal's 
derivative family members is currently reflected in DHS policy and 
includes certain associated costs. In order for family members to be 
eligible for the new T-6 derivative categories, the T-1 principal must 
file an Application for Family Member of T-1 Recipient, Form I-914 
Supplement A, on behalf of each of these family members, in accordance 
with form instructions. There is no fee to file the Form I-914 
Supplement A; therefore, the associated cost to the T-1 principal is 
the opportunity cost of time to file the form. DHS uses the time burden 
of one hour for Form I-914 Supplement A to calculate the opportunity 
cost associated with this provision.\42\
---------------------------------------------------------------------------

    \42\ Currently, the PRA time burden for Application for T-1 
Nonimmigrant Status, Form I-914 and Application for Immediate Family 
Member of T-1 Recipient, Form I-914 Supplement A are not reported 
separately. The current time burden is reported in aggregate as 3 
hours 15 min. The information collection instrument is being revised 
slightly, and as part of those revisions, the time burden for each 
form, Form I-914 (2.25 hours) and Form I-914A (1 hour), will be 
reported separately. The information collection request will be 
reviewed by OMB concurrent with the interim final rule.
---------------------------------------------------------------------------

    Consistent with other DHS rulemakings, we use wage rates as the 
mechanism to calculate opportunity or time valuation costs associated 
with submitting required information to USCIS in order to apply for 
immigration benefits. Since T-1 principals must file one Application 
for Immediate Family Member of T-1 Recipient, Form 914 Supplement A, on 
behalf of each of their eligible family members and are authorized to 
work when they are granted T nonimmigrant status, DHS employs the mean 
hourly wage rate of all occupations in the United States, $23.23.\43\ 
The mean hourly wage rate is multiplied by 1.46 to account for the full 
cost of employee benefits such as paid leave, insurance, and 
retirement, bringing the total burdened wage rate to $33.92.\44\ 
Therefore, the T-1 principal is subject to a per application 
opportunity cost of $33.92 to complete and file an Application for 
Immediate Family Member of T-1 Recipient, Form I-914 Supplement A with 
USCIS.\45\
    The opportunity cost of time for T-1 principals to file the 
Application for Family Member of a T-1 Recipient, Form I-914 Supplement 
A, as presented here are individual per application costs only; 
applying these costs to an entire population is not possible at this 
time. DHS has no way to estimate the additional population of eligible 
family members who may qualify for status under the new T-6 
nonimmigrant derivative classification. Current statutory authority 
offers no comparable immigration benefits to family members of 
nonimmigrant aliens outside of those considered immediate relatives, 
such as spouses, children, parents, and in some cases siblings. Making 
benefits eligible to the children (adult or minor) of derivatives will 
be a new practice for DHS; therefore, an informed estimation of this 
population is not possible.
    Table 3 provides a summary of the costs and benefits to the 
regulated population that are associated with the statutory changes as 
put forth by VAWA 2013.
---------------------------------------------------------------------------

    \43\ U.S. Department of Labor, Bureau of Labor Statistics. May 
2015 National Occupational Employment and Wage Estimates, Mean 
Hourly Wage (all occupations), available at: https://www.bls.gov/oes/current/oes_nat.htm#00-0000.
    \44\ Calculation: $23.23 x 1.46 = $33.92. Bureau of Labor 
Statistics, Economic News Release, Table 1. Employer costs per hour 
worked for employee compensation and costs as a percent of total 
compensation: Civilian workers, by major occupational and industry 
group, March 2016, available at: https://www.bls.gov/news.release/ecec.t01.htm.
    \45\ ($33.92 hourly burdened wage rate) x (1 hour estimated time 
burden) = $33.92.

[[Page 92300]]



 Table 3--Summary of Impacts to the Regulated Population of VAWA 2013 Statutory Changes Codified by This Interim
                                                      Rule
----------------------------------------------------------------------------------------------------------------
                                                                  Expected cost of the   Expected benefit of the
              Provision                     Current policy            interim rule             interim rule
----------------------------------------------------------------------------------------------------------------
Allowing principals to apply for       Adult or minor children  T-1 principals will      If eligible, the
 derivative T nonimmigrant status for   of the principal's       face an opportunity      children of the
 children of the principal's            derivative family        cost of $33.92 to file   principal's derivative
 derivative family members if the       members may now be       Form I-914 Supplement    relatives may qualify
 derivative's child faces a present     eligible for T           A on behalf of the       for T-6 nonimmigrant
 danger of retaliation as a result of   nonimmigrant status      derivative's adult or    status, and obtain the
 the victim's escape from a severe      under the new T-6        minor child.             immigration benefits
 form of trafficking or cooperation     derivative category.                              that accompany that
 with law enforcement.                                                                    status. In addition,
                                                                                          LEAs may benefit if
                                                                                          more victims come
                                                                                          forward to report
                                                                                          trafficking crimes.
Implementing a clarification that      Time in the CNMI as a T  None...................  Provides a benefit in
 presence in the Commonwealth of the    nonimmigrant, whether                             that it addresses a
 Northern Mariana Islands (CNMI)        before, on or after                               gap in immigration law
 after being granted T nonimmigrant     November 28, 2009, now                            as it pertains to the
 status prior to November 28, 2009      counts as physical                                CNMI and removes a
 qualifies toward the requisite         presence for purposes                             provision that may
 physical presence requirement for      of establishing                                   have been a bar to
 adjustment of status.                  eligibility for                                   adjustment of status
                                        adjustment of status                              to lawful permanent
                                        as a T nonimmigrant to                            resident.
                                        lawful permanent
                                        residence.
----------------------------------------------------------------------------------------------------------------

b. Costs of Discretionary Changes
    Most of the discretionary changes included in the interim rule will 
require no additional costs to either victims of severe forms of 
trafficking or to DHS in its administration of T nonimmigrant status 
benefits. The two provisions related to USCIS's waiver authority over 
criminal inadmissibility grounds and its discretion to grant deferred 
action to those victims placed on the waiting list simply clarify 
current USCIS practice and do not result in changes to the process of 
handling and adjudicating T nonimmigrant applications. Likewise, the 
guidance provided in the interim rule for meeting the definition of 
``severe forms of trafficking in persons'' where an individual has not 
performed labor or service, or a commercial sex act is simply a 
clarification of current DHS interpretation of the definition and will 
not result in additional costs or changes to the process of handling 
and the adjudication of T nonimmigrant applications. The remaining 
discretionary changes that result in no additional costs include:
     No longer weighing evidence as either primary or secondary 
in favor of an ``any credible evidence'' standard;
     Eliminating the requirement that applicants provide three 
passport-style photographs as part of his or her application;
     Discontinuing the current practice of requiring victims 
who escaped from traffickers prior to LEA involvement to submit 
evidence to show that he or she had no clear opportunity to depart from 
the United States; and
     Providing guidance on physical presence as it relates to 
eligibility for T nonimmigrant status when the trafficking has occurred 
abroad.
    Though these provisions do amend current DHS practice, they place 
no further burden or cost on victims of trafficking who wish to apply 
for T nonimmigrant status. Furthermore, DHS does not expect these 
changes to have an impact on staffing plans or adjudication timeframes 
in processing T nonimmigrant applications. The change to remove the 
filing deadline for individuals victimized prior to October 28, 2000 
will result in costs for any additional victims that may now be 
eligible to apply for principal T-1 nonimmigrant status. In addition, 
if the victim wishes to provide evidence in their application that they 
are cooperating with law enforcement, there will be an opportunity cost 
for the law enforcement officer completing the Declaration of Law 
Enforcement Office for Victim of Trafficking in Persons, Form I-914 
Supplement B.
    Since there are no fees associated with either the T nonimmigrant 
application or providing required biometrics, the newly eligible 
population would be responsible only for the opportunity cost of time 
to file the Form I-914 and to submit the required biometrics.
    DHS estimates the time burden to file the Form I-914 to be 2.25 
hours. Generally, trafficked individuals applying for T-1 nonimmigrant 
status are not eligible to work in the United States until after USCIS 
has made a decision on their application (either a grant of bona fide 
determination or an approval). There could, however, be instances where 
a victim may have received other forms of immigration relief which 
allowed them to legally work, although DHS does not collect the data 
necessary to estimate the number of victims that may fall into this 
category.\46\ Consistent with other DHS rulemakings, we use wage rates 
as a mechanism to estimate the opportunity or time valuation costs for 
these aliens to file the Application for T Nonimmigrant Status, Form I-
914 and to submit the required biometrics.
---------------------------------------------------------------------------

    \46\ For example, some in this population could have received a 
grant of continued presence from DHS, U.S. Immigrations and Customs 
Enforcement, which would permit them work authorization. See 22 
U.S.C. 7105(c)(3)(A)(i).
---------------------------------------------------------------------------

    Assuming that most individuals applying for T-1 nonimmigrant status 
on the basis of removing the October 28, 2000 filing deadline are not 
yet authorized to work in the United States, DHS will use the Federal 
minimum wage as a proxy to estimate the opportunity cost understanding 
these individuals are not currently eligible to participate in the 
workforce. The Federal minimum wage is currently $7.25 per hour.\47\ To 
anticipate the full opportunity costs faced by the applicants, the 
minimum hourly wage rate is multiplied by 1.46 to account for the full 
cost of employee benefits such as paid leave, insurance, and 
retirement, which equals $10.59 per hour.\48\ DHS

[[Page 92301]]

multiplied the fully burdened wage rate of $10.59 per hour by the 2.25 
hours estimated to file the Form I-914 to get an opportunity cost of 
$23.83 to file the Application for T Nonimmigrant Status.\49\
---------------------------------------------------------------------------

    \47\ U.S. Department of Labor, Wage and Hour Division. Minimum 
Wage effective July 24, 2009, available at: https://www.dol.gov/dol/topic/wages/minimumwage.htm.
    \48\ U.S. Department of Labor, Bureau of Labor Statistics, 
Economic News Release, Table 1. Employer costs per hour worked for 
employee compensation and costs as a percent of total compensation: 
Civilian workers, by major occupational and industry group, May 
2016, available at https://www.bls.gov/news.release/ecec.t01.
    \49\ ($10.59 per hour) x (2.25 hours) = $23.83.
---------------------------------------------------------------------------

    Applicants seeking T-1 nonimmigrant status will be required to 
travel to an ASC to submit biometrics. In past rulemaking, DHS 
estimated that the average round-trip distance to an ASC is 50 miles, 
and that the average travel time for the trip is 2.5 hours.\50\ DHS 
also estimates that applicants will wait an average of 1.17 hours for 
service, bringing the total time to submit biometrics to 3.67 
hours.^{51 52} In addition, the cost of travel includes a 
mileage charge based on the estimated 50 mile round trip at the 2016 
General Services Administration rate of $0.54 per mile, which equals 
$27.00 for each applicant.\53\ Using an opportunity cost of time of 
$10.59 per hour and the 3.67 hours estimated time for travel and 
service and the mileage charge of $27.00, DHS estimates the cost per T-
1 principal applicant to be $65.87 for travel to and service at the 
ASC.\54\ Therefore, the full cost for a T nonimmigrant applicant 
victimized prior to October 28, 2000, including the total costs of 
filing the Form I-914 and submitting biometrics, is $89.70.\55\
---------------------------------------------------------------------------

    \50\ See, e.g., Provisional Unlawful Presence Waivers of 
Inadmissibility for Certain Immediate Relatives, 78 FR 535 (Jan. 3, 
2013) (DHS final rule).
    \51\ See ``Paperwork Reduction Act (PRA) Supporting Statement 
for Application for Employment Authorization, Form I-765 (OMB 
control number 1615-0040), Question 13. The Supporting Statement can 
be found on Reginfo.gov at https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201502-1615-004.''
    \52\ Calculation: 2.5 hours + 1.17 average of service wait time 
= 3.67 total time to submit biometrics.
    \53\ The General Services Administration mileage rate of $0.54, 
effective January 1, 2016, available at: https://www.gsa.gov/portal/content/100715.
    \54\ ($10.46 per hour x 3.67 hours) + ($0.54 per mile x 50 
miles) = $65.87.
    \55\ $23.83 + $65.87 = $89.70.
---------------------------------------------------------------------------

    Lastly, there is an opportunity cost for law enforcement to 
complete Declaration of Law Enforcement Officer for Victim of 
Trafficking in Persons, Form I-914 Supplement B if the applicant 
decides to include that evidence in their application. DHS estimates 
the time burden to complete Declaration of Law Enforcement Officer for 
Victim of Trafficking in Persons, Form I-914 Supplement B is 3.75 
hours. In 2015, the mean hourly wage rate for law enforcement workers 
was $27.34, which when accounting for non-salaried benefits equals 
$39.92.\56\ Using this total hourly wage rate, DHS estimates the 
opportunity costs for law enforcement to complete the Declaration of 
Law Enforcement Officer for Victim of Trafficking in Persons, Form I-
914 Supplement B is $149.70.\57\ DHS is unable to estimate how many 
individuals victimized prior to October 28, 2000 may apply once the 
filing deadline is removed. Due to the passage of time, we anticipate 
filing volumes for those that were victimized prior to October 28, 2000 
to be minimal.
---------------------------------------------------------------------------

    \56\ U.S. Department of Labor, Bureau of Labor Statistics. May 
2015 National Occupational Employment and Wage Estimates, Law 
Enforcement Workers (occupational group code 33-3000), https://www.bls.gov/oes/current/oes_nat.htm#33-0000. The calculation to load 
the wage is: $27.34 x 1.46 = $39.92 (rounded).
    \57\ ($39.92 hourly burdened wage rate) x (3.75 hours in 
estimated time burden) = $149.70.
---------------------------------------------------------------------------

    Additionally, individuals who may now become eligible for T 
nonimmigrant status as a result of the expanded interpretation of the 
physical presence requirement will face the same opportunity cost of 
$89.70 to file the Form I-914 and submit the required biometrics. 
Likewise, if the applicant decides to include evidence of law 
enforcement cooperation, the law enforcement official completing 
Declaration of Law Enforcement Officer for Victim of Trafficking in 
Persons, Form I-914 Supplement B will face an opportunity cost of 
$149.70. DHS is unable to estimate how many individuals may become 
eligible as a result of this provision but anticipates there will be a 
limited number of cases where the trafficking occurred outside of the 
United States and the alien will now meet the physical presence 
requirement.
    Table 4 provides a summary of the costs and benefits associated 
with each discretionary change made in this interim rule. The 
discretionary change that updates terminology and organizational 
structure in DHS regulations is not included in the table as it results 
in no additional impacts.

Table 4--Summary of Impacts to the Regulated Population of the Discretionary Changes Implemented in This Interim
                                                      Rule
----------------------------------------------------------------------------------------------------------------
                                          Changes to current
              Provision                 policy resulting from     Expected cost of the   Expected benefit of the
                                           the interim rule           interim rule             interim rule
----------------------------------------------------------------------------------------------------------------
Specifies how USCIS exercises its      None. This will simply   None...................  Providing clarity and
 waiver authority over criminal         be a clarification of                             consistency in DHS
 inadmissibility grounds.               current DHS practice                              practice with DHS
                                        and align T                                       regulations will lead
                                        nonimmigrant                                      to a qualitative
                                        regulations with those                            benefit to both the
                                        currently governing                               victims of trafficking
                                        the U nonimmigrant                                and USCIS staff
                                        status.                                           adjudicating these
                                                                                          cases.
Discontinues weighing evidence as      Evidence will no longer  None...................  Removes confusion
 primary and secondary in favor of a    be labeled primary or                             associated with
 standard that reviews any credible     secondary. DHS will                               labeling evidence as
 evidence in making the determination   accept any credible                               primary and secondary,
 to approve or disapprove an            evidence of compliance                            and will result in
 application for T nonimmigrant         with any reasonable                               qualitative benefits
 status.                                request to assist LEAs.                           for both the victims
                                                                                          of trafficking and
                                                                                          LEAs.
Eliminates the requirement that an     The applicant will no    None...................  Results in total
 applicant provide three passport-      longer be responsible                             quantitative savings
 style photographs.                     for submitting three                              of $56,130 for
                                        passport-style                                    principal applicants
                                        photographs with his/                             and their derivatives.
                                        her application. DHS
                                        will continue to take
                                        photographs at
                                        Application Support
                                        Centers at the time of
                                        fingerprint collection.

[[Page 92302]]

 
Removes the filing deadline for        Those victimized prior   Any new eligible         Those victimized prior
 applicants victimized prior to         to October 28, 2000      applicants will be       to October 28, 2000,
 October 28, 2000.                      will be able to apply    responsible for the      and their eligible
                                        for T nonimmigrant       full cost of $89.70      derivative family
                                        status.                  for applying and         members, will be able
                                                                 submitting               to apply for T
                                                                 fingerprints. If         nonimmigrant status
                                                                 included in the          and receive the
                                                                 application, the cost    immigration benefits
                                                                 for law enforcement to   associated with that
                                                                 complete Form I-914      status.
                                                                 Supplement B is
                                                                 $149.70.
Permits USCIS to take a discretionary  None. This will simply   None...................  Providing clarity and
 action to protect applicants from      be a clarification of                             consistency in DHS
 removal who are placed on the          current DHS practice                              practice will lead to
 waiting list if the statutory cap is   and align T                                       a qualitative benefit
 met in a given fiscal year.            nonimmigrant                                      to both the victims of
                                        regulations with those                            trafficking and DHS
                                        currently governing                               staff adjudicating
                                        the U nonimmigrant                                these cases.
                                        status.
Removes the current regulatory         DHS will no longer       None...................  Provides a qualitative
 ``opportunity to depart''              require additional                                benefit by removing an
 requirement for those victims who      evidence to show the                              additional evidentiary
 escaped traffickers before law         victim had no                                     burden for those
 enforcement became involved.           opportunity to depart                             victims of trafficking
                                        the United States                                 who escaped prior to
                                        after he/she escaped                              LEA involvement.
                                        traffickers prior to
                                        LEA involvement.
Provides guidance on meeting the       None. This will clarify  None...................  Providing clarity and
 definition of ``severe forms of        current DHS practice                              consistency in DHS
 trafficking in persons'' where an      as regards the                                    practice will lead to
 individual has not performed labor     definition of ``severe                            a qualitative benefit
 or services, or a commercial sex act.  forms of trafficking                              to both the victims of
                                        in persons''.                                     trafficking and DHS
                                                                                          staff adjudicating
                                                                                          these cases.
Addresses situations where             DHS may consider         Any new eligible         Individuals victimized
 trafficking has occurred abroad and    victims as having met    applicants will be       abroad, and their
 whether the applicant can              the physical presence    responsible for the      eligible derivative
 potentially meet the physical          requirement for          full cost of $89.70      family members, can
 presence requirement.                  certain instances when   for applying and         apply for T
                                        the trafficking          submitting               nonimmigrant status.
                                        occurred outside the     fingerprints. If         These victims will
                                        United States.           included in the          also help in
                                                                 application, the cost    investigations of
                                                                 for law enforcement to   trafficking crimes,
                                                                 complete Form I-914      which will benefit
                                                                 Supplement B is          LEAs.
                                                                 $149.70.
----------------------------------------------------------------------------------------------------------------

c. Costs to the Federal Government
    If the changes implemented in this interim rule increase the volume 
of applications for T nonimmigrant status, USCIS could face increased 
costs to administer the T nonimmigrant status program. The INA provides 
for the collection of fees at a level that will ensure recovery of the 
full costs of providing adjudication and naturalization services, 
including services provided without charge to asylum applicants and 
certain other immigrant applicants. INA section 286(m), 8 U.S.C. 
1356(m). Recognizing the economic needs and hardships of this 
vulnerable population, as a matter of policy USCIS exempted the fee for 
applying for T nonimmigrant status and for submitting biometrics. 
Likewise, the fees for any additional applications needed for T 
nonimmigrants, from the time the alien victim applies for initial T 
nonimmigrant status (e.g. for submitting waivers of inadmissibility 
requests) through applications to adjust status, are eligible for fee 
waiver requests. Accordingly, the costs incurred by USCIS to process T 
nonimmigrant applications and biometrics are an insignificant portion 
of the total USCIS adjudication costs compared to other fee paying 
immigrant benefit requests. These costs are insignificant due to the 
small number of receipts of Form I-914. In FY 2015, USCIS received 
2,224 Form I-914 applications (see Table 1) out of a total of 7,650,475 
applications received agency wide, making Form I-914 receipts less than 
0.03% of total agency-wide receipts.\58\ Therefore, to the extent that 
the changes implemented in this interim rule may result in additional 
applications, or even reach the statutory cap of 5,000 applications, in 
the short term we expect those costs to be insignificant and absorbed 
by the current fee structure for immigration benefits. In the long 
term, USCIS will continue to monitor the costs of administering the T 
nonimmigrant program as a normal part of its biennial fee review. The 
biennial fee review determines if fees for immigration benefits are 
sufficient in light resource needs and filing trends. As previously 
mentioned, beneficiaries of T nonimmigrant status are also eligible for 
federal public benefits from the Department of Health and Human 
Services, so the changes implemented in this interim rule could result 
in increased transfer payments if there are increases in the number of 
persons granted T nonimmigrant status.
---------------------------------------------------------------------------

    \58\ Source: USCIS, Number of Service-wide Forms by Fiscal Year 
To-Date, Quarter, and Form Status 2015 available at https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20Types/all_forms_performancedata_fy2015_qtr4.pdf.
---------------------------------------------------------------------------

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), as amended 
by the Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA), requires an agency to prepare and make available to the 
public a regulatory flexibility analysis that describes the effect of 
the rule on small entities (i.e., small businesses, small 
organizations, and small governmental jurisdictions). A regulatory 
flexibility analysis is not required when a rule is exempt from notice 
and comment rulemaking. DHS has determined that this rule is exempt 
from notice and comment rulemaking. Therefore, a regulatory flexibility 
analysis is not required for this rule. Nonetheless, USCIS examined the

[[Page 92303]]

impact of this rule on small entities under the Regulatory Flexibility 
Act (RFA), 5 U.S.C. 601(6). The individual victims of trafficking and 
their derivative family members to whom this rule applies are not small 
entities as that term is defined in 5 U.S.C. 601(6).

F. Executive Order 13132

    This rule will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132 (Federalism), it is determined that this rule 
does not have sufficient federalism implications to warrant the 
preparation of a federalism summary impact statement.

G. Executive Order 12988

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988 (Civil Justice Reform).

H. Family Assessment

    This regulation may affect family well-being as that term is 
defined in section 654 of the Treasury General Appropriations Act, 
1999, Public Law 105-277, Div. A. This action has been assessed in 
accordance with the criteria specified by section 654(c)(1). This 
regulation will enhance family well-being by encouraging vulnerable 
individuals who have been victims of severe forms of trafficking in 
persons to report the criminal activity and by providing critical 
assistance and benefits. Additionally, this regulation allows certain 
family members to obtain T nonimmigrant status once the principal 
applicant has received status.

I. Paperwork Reduction Act

    Under the PRA of 1995, 44 U.S.C. 3501 et seq., all Departments are 
required to submit to OMB, for review and approval, any reporting 
requirements inherent in a rule. DHS is amending application 
requirements and procedures for aliens to receive T nonimmigrant 
status, defined in section 101(a)(15)(T) of the INA, 8 U.S.C. 
1101(a)(15)(T). DHS has revised the Application for T Nonimmigrant 
Status, Form I-914; the Application for Family Member of T-1 Recipient, 
Form I-914 Supplement A; and the Declaration of Law Enforcement Officer 
for Victim of Trafficking in Persons, Form I-914 Supplement B, and the 
associated form instructions to conform with the new regulations (OMB 
Control Number 1615-0099). These forms are considered information 
collections and are covered under the PRA. USCIS previously requested 
public comments on the revised forms and form instructions for 60 days. 
60-day notice, Agency Information Collection Activities: Application 
for T Nonimmigrant Status, Form I-914, Application for Immediate Family 
Member of T-1 Recipient, Supplement A, Declaration of Law Enforcement 
Officer for Victim of Trafficking in Persons, Supplement B; Revision of 
a Currently Approved Collection, 79 FR 6209-10 (Feb. 3, 2014). One 
comment was received that expressed general opposition to the T 
nonimmigrant program but provided no input on the information 
collection instruments. No changes were made in response to the 
comment.
    The revised information collection has been submitted for approval 
to the Office of Management and Budget (OMB) for review and approval 
under procedures covered under the PRA. USCIS is requesting comments on 
this information collection for 30 days until January 18, 2017. When 
submitting comments on the information collection, your comments should 
address one or more of the following four points.
    (1) Evaluate whether the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the collection of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses.
    Overview of information collection:
    (a) Type of information collection: Revised information collection.
    (b) Abstract: This information collection will be used by 
individuals (aliens who are victims of severe forms of trafficking in 
persons and certain family members, as appropriate) to file a request 
for USCIS approval for T nonimmigrant status.
    (c) Title of Form/Collection: Application for T Nonimmigrant 
Status, Application for Family Member of T-1 Recipient, and Declaration 
of Law Enforcement Officer for Victim of Trafficking in Persons.
    (d) Agency form number, if any, and the applicable component of the 
Department of Homeland Security sponsoring the collection: Form I-914, 
Form I-914 Supplement A, and Form I-914 Supplement B; USCIS.
    (e) Affected public who will be asked or required to respond: 
Individuals and households.
    (f) An estimate of the total number of annual respondents: 1,871 
respondents.
    (g) Hours per response: Application for T Nonimmigrant Status, Form 
I-914 at 2.25 hours per response; Application for Family Member of T-1 
Recipient, Form I-914 Supplement A at 1 hour per response; Declaration 
of Law Enforcement Officer for Victim of Trafficking in Persons, Form 
I-914 Supplement B at 3.75 hours per response; and biometric services 
processing at 1.17 hours per response.
    (h) Total annual reporting burden: 9,921 annual burden hours.
    Comments should refer to the proposal by name and/or the OMB 
Control Number and should be sent to DHS using one of the methods 
provided under the ADDRESSES and I. Public Participation sections of 
this interim rule. Comments should also be submitted to USCIS Desk 
Officer, Office of Management and Budget, New Executive Office 
Building, Washington, DC 20503; fax: 202-395-5806. Email: 
OIRA_Submission@omb.eop.gov.

List of Subjects

8 CFR Part 212

    Administrative practice and procedure, Aliens, Immigration, 
Passports and visas, Reporting and recordkeeping requirements.

8 CFR Part 214

    Administrative practice and procedure, Aliens, Cultural exchange 
programs, Employment, Foreign officials, Health professions, Reporting 
and recordkeeping requirements, Students.

8 CFR Part 245

    Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 274a

    Administrative practice and procedure, Aliens, Employment, 
Penalties, Reporting and recordkeeping requirements.

    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is amended as follows:

[[Page 92304]]

PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; 
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

0
1. The authority citation for part 212 is revised to read as follows:

    Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 
1184, 1187, 1223, 1225, 1226, 1227, 1255, 1359; 8 U.S.C. 1185 note 
(section 7209 of Pub. L. 108-458); 8 CFR part 2. Section 212.1(q) 
also issued under section 702, Pub. L. 110-229, 122 Stat. 754, 854.


0
2. Section 212.1 is amended by revising paragraph (o) to read as 
follows:


Sec.  212.1  Documentary requirements for nonimmigrants.

* * * * *
    (o) Alien in T-2 through T-6 classification. USCIS may apply 
paragraph (g) of this section to individuals seeking T-2, T-3, T-4, T-
5, or T-6 nonimmigrant status upon request by the applicant.
* * * * *

0
3. Section 212.16 is revised to read as follows:


Sec.  212.16  Applications for exercise of discretion relating to T 
nonimmigrant status.

    (a) Requesting the waiver. An alien requesting a waiver of 
inadmissibility under section 212(d)(3)(B) or (d)(13) of the Act must 
submit a waiver form as designated by USCIS in accordance with 8 CFR 
103.2.
    (b) Treatment of waiver request. USCIS, in its discretion, may 
grant a waiver request based on section 212(d)(13) of the Act of the 
applicable ground(s) of inadmissibility, except USCIS may not waive a 
ground of inadmissibility based on sections 212(a)(3), (a)(10)(C), or 
(a)(10)(E) of the Act. An applicant for T nonimmigrant status is not 
subject to the ground of inadmissibility based on section 212(a)(4) of 
the Act (public charge) and is not required to file a waiver form for 
the public charge ground. Waiver requests are subject to a 
determination of national interest and connection to victimization as 
follows.
    (1) National interest. USCIS, in its discretion, may grant a waiver 
of inadmissibility request if it determines that it is in the national 
interest to exercise discretion to waive the applicable ground(s) of 
inadmissibility.
    (2) Connection to victimization. An applicant requesting a waiver 
under section 212(d)(13) of the Act on grounds other than the health-
related grounds described in section 212(a)(1) of the Act must 
establish that the activities rendering him or her inadmissible were 
caused by, or were incident to, the victimization described in section 
101(a)(15)(T)(i)(I) of the Act.
    (3) Criminal grounds. In exercising its discretion, USCIS will 
consider the number and seriousness of the criminal offenses and 
convictions that render an applicant inadmissible under the criminal 
and related grounds in section 212(a)(2) of the Act. In cases involving 
violent or dangerous crimes, USCIS will only exercise favorable 
discretion in extraordinary circumstances, unless the criminal 
activities were caused by, or were incident to, the victimization 
described under section 101(a)(15)(T)(i)(I) of the Act.
    (c) No appeal. There is no appeal of a decision to deny a waiver 
request. Nothing in this section is intended to prevent an applicant 
from re-filing a request for a waiver of a ground of inadmissibility in 
appropriate cases.
    (d) Revocation. USCIS, at any time, may revoke a waiver previously 
authorized under section 212(d) of the Act. There is no appeal of a 
decision to revoke a waiver.

PART 214--NONIMMIGRANT CLASSES

0
4. The authority citation for part 214 continues to read as follows:

    Authority: 6 U.S.C. 111 and 202; 8 U.S.C. 1101, 1102, 1103, 
1182, 1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305 and 1372 and 
1762; Sec. 643, Pub. L. 104-208, 110 Stat. 3009-708; Pub. L. 106-
386, 114 Stat. 1477-1480; Pub. L. 107-173, 116 Stat. 543; section 
141 of the Compacts of Free Association with the Federated States of 
Micronesia and the Republic of the Marshall Islands, and with the 
Government of Palau, 48 U.S.C. 1901 note, and 1931 note, 
respectively; 48 U.S.C. 1806; 8 CFR part 2.


0
5. Section 214.1 is amended by:
0
a. Revising paragraph (a)(1)(viii); and
0
b. Adding entries for ``101(a)(15)(T)(v)'' and ``101(a)(15)(T)(vi)'' in 
alpha/numeric sequence in the table in paragraph (a)(2).
    The revision and additions read as follows:


Sec.  214.1  Nonimmigrant classifications.

    (a) * * *
    (1) * * *
    (viii) Section 101(a)(15)(T)(ii) is divided into (T)(ii), (T)(iii), 
(T)(iv), and (T)(v) for the spouse, child, parent, and unmarried 
sibling under 18 years of age, respectively, of a principal 
nonimmigrant classified under section 101(a)(15)(T)(i); and T(vi) for 
the adult or minor child of a derivative nonimmigrant classified under 
section 101(a)(15)(T)(ii); and
* * * * *
    (2) * * *

------------------------------------------------------------------------
                  Section                            Designation
------------------------------------------------------------------------
 
                                * * * * *
101(a)(15)(T)(v)..........................  T-5.
101(a)(15)(T)(vi).........................  T-6.
 
                                * * * * *
------------------------------------------------------------------------

* * * * *

0
6. Section 214.11 is revised to read as follows:


Sec.  214.11  Alien victims of severe forms of trafficking in persons.

    (a) Definitions. Where applicable, USCIS will apply the definitions 
provided in section 103 and 107(e) of the Trafficking Victims 
Protection Act (TVPA) with due regard for the definitions and 
application of these terms in 28 CFR part 1100 and the provisions of 18 
U.S.C. 77. As used in this section the term:
    Application for derivative T nonimmigrant status means a request by 
a principal alien on behalf of an eligible family member for derivative 
T-2, T-3, T-4, T-5, or T-6 nonimmigrant status on the form designated 
by USCIS for that purpose.
    Application for T nonimmigrant status means a request by a 
principal alien for T-1 nonimmigrant status on the form designated by 
USCIS for that purpose.
    Bona fide determination means a USCIS determination that an 
application for T-1 nonimmigrant status has been initially reviewed and 
determined that the application does not appear to be fraudulent, is 
complete and properly filed, includes completed fingerprint and 
background checks, and presents prima facie evidence of eligibility for 
T-1 nonimmigrant status including admissibility.
    Child means a person described in section 101(b)(1) of the Act.
    Coercion means 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 act would result in 
serious harm to or physical restraint against any person; or the abuse 
or threatened abuse of the legal process.
    Commercial sex act means any sex act on account of which anything 
of value is given to or received by any person.
    Debt bondage means the status or condition of a debtor arising from 
a pledge by the debtor of his or her personal services or of those of a 
person under his or her control as a security for debt, if the value of 
those services as reasonably assessed is not applied

[[Page 92305]]

toward the liquidation of the debt or the length and nature of those 
services are not respectively limited and defined.
    Derivative T nonimmigrant means an eligible family member who has 
been granted T-2, T-3, T-4, T-5, or T-6 derivative status. A family 
member outside of the United States is not a derivative T nonimmigrant 
until he or she is granted a T-2, T-3, T-4, T-5, or T-6 visa by the 
Department of State and is admitted to the United States in derivative 
T nonimmigrant status.
    Eligible family member means a family member who may be eligible 
for derivative T nonimmigrant status based on his or her relationship 
to an alien victim and, if required, upon a showing of a present danger 
or retaliation; and:
    (1) In the case of an alien victim who is 21 years of age or older, 
means the spouse and children of such alien;
    (2) In the case of an alien victim under 21 years of age, means the 
spouse, children, unmarried siblings under 18 years of age, and parents 
of such alien; and
    (3) Regardless of the age of an alien victim, means any parent or 
unmarried sibling under 18 years of age, or adult or minor child of a 
derivative of such alien where the family member faces a present danger 
of retaliation as a result of the alien victim's escape from a severe 
form of trafficking or cooperation with law enforcement.
    Involuntary servitude means 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 
condition, that person or another person would suffer serious harm or 
physical restraint; or a condition of servitude induced by the abuse or 
threatened abuse of legal process. Involuntary servitude includes a 
condition of servitude in which the victim is forced to work for the 
defendant by the use or threat of physical restraint or physical 
injury, or by the use or threat of coercion through the law or the 
legal process. This definition encompasses those cases in which the 
defendant holds the victim in servitude by placing the victim in fear 
of such physical restraint or injury or legal coercion.
    Law Enforcement Agency (LEA) means a Federal, State, or local law 
enforcement agency, prosecutor, judge, labor agency, children's 
protective services agency, or other authority that has the 
responsibility and authority for the detection, investigation, and/or 
prosecution of severe forms of trafficking in persons. Federal LEAs 
include but are not limited to the following: U.S. Attorneys' Offices, 
Civil Rights Division, Criminal Division, U.S. Marshals Service, 
Federal Bureau of Investigation (Department of Justice); U.S. 
Immigration and Customs Enforcement (ICE), U.S. Customs and Border 
Protection (CBP); Diplomatic Security Service (Department of State); 
and Department of Labor.
    Law Enforcement Agency (LEA) endorsement means an official LEA 
endorsement on the form designated by USCIS for such purpose.
    Peonage means a status or condition of involuntary servitude based 
upon real or alleged indebtedness.
    Principal T nonimmigrant means the victim of a severe form of 
trafficking in persons who has been granted T-1 nonimmigrant status.
    Reasonable request for assistance means a request made by an LEA to 
a victim to assist in the investigation or prosecution of the acts of 
trafficking in persons or the investigation of crime where acts of 
trafficking are at least one central reason for the commission of that 
crime. The ``reasonableness'' of the request depends on the totality of 
the circumstances. Factors to consider include, but are not limited to: 
General law enforcement and prosecutorial practices; the nature of the 
victimization; the specific circumstances of the victim; severe trauma 
(both mental and physical); access to support services; whether the 
request would cause further trauma: The safety of the victim or the 
victim's family; compliance with other requests and the extent of such 
compliance; whether the request would yield essential information; 
whether the information could be obtained without the victim's 
compliance; whether an interpreter or attorney was present to help the 
victim understand the request; cultural, religious, or moral objections 
to the request; the time the victim had to comply with the request; and 
the age and maturity of the victim.
    Severe form of trafficking in persons means 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 is under the age of 18 
years; 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.
    Sex trafficking means the recruitment, harboring, transportation, 
provision, obtaining, patronizing, or soliciting of a person for the 
purpose of a commercial sex act.
    United States means the fifty States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin 
Islands, Guam, and the Commonwealth of the Northern Mariana Islands.
    Victim of a severe form of trafficking in persons (victim) means an 
alien who is or has been subject to a severe form of trafficking in 
persons.
    (b) Eligibility for T-1 status. An alien is eligible for T-1 
nonimmigrant status under section 101(a)(15)(T)(i) of the Act if he or 
she demonstrates all of the following, subject to section 214(o) of the 
Act:
    (1) Victim. The alien is or has been a victim of a severe form of 
trafficking in persons.
    (2) Physical presence. The alien is physically present in the 
United States or at a port-of-entry thereto, according to paragraph (g) 
of this section.
    (3) Compliance with any reasonable request for assistance. The 
alien has complied with any reasonable request for assistance in a 
Federal, State, or local investigation or prosecution of acts of 
trafficking in persons, or the investigation of a crime where acts of 
trafficking in persons are at least one central reason for the 
commission of that crime, or meets one of the conditions described 
below.
    (i) Exemption for minor victims. An alien under 18 years of age is 
not required to comply with any reasonable request.
    (ii) Exception for trauma. An alien who, due to physical or 
psychological trauma, is unable to cooperate with a reasonable request 
for assistance in the Federal, State, or local investigation or 
prosecution of acts of trafficking in persons, or the investigation of 
a crime where acts of trafficking in persons are at least one central 
reason for the commission of that crime, is not required to comply with 
such reasonable request.
    (4) Hardship. The alien would suffer extreme hardship involving 
unusual and severe harm upon removal.
    (5) Prohibition against traffickers in persons. No alien will be 
eligible to receive T nonimmigrant status under section 101(a)(15)(T) 
of the Act if there is substantial reason to believe that the alien has 
committed an act of a severe form of trafficking in persons.
    (c) Period of admission. (1) T-1 Principal. T-1 nonimmigrant status 
may be approved for a period not to exceed 4 years, except as provided 
in section 214(o)(7) of the Act.
    (2) Derivative family members. A derivative family member who is 
otherwise eligible for admission may be granted T-2, T-3, T-4, T-5, or 
T-6 nonimmigrant status for an initial period that does not exceed the

[[Page 92306]]

expiration date of the initial period approved for the T-1 principal 
alien, except as provided in section 214(o)(7) of the Act.
    (3) Notice. At the time an alien is approved for T nonimmigrant 
status or receives an extension of T nonimmigrant status, USCIS will 
notify the alien when his or her T nonimmigrant status will expire. 
USCIS also will notify the alien that the failure to apply for 
adjustment of status to lawful permanent resident, as set forth in 8 
CFR 245.23, will result in termination of the alien's T nonimmigrant 
status in the United States at the end of the 4-year period or any 
extension.
    (d) Application. USCIS has sole jurisdiction over all applications 
for T nonimmigrant status.
    (1) Filing an application. An alien seeking T-1 nonimmigrant status 
must submit an application for T nonimmigrant status on the form 
designated by USCIS in accordance with 8 CFR 103.2 and with the 
evidence described in paragraph (d) of this section.
    (i) Applicants in pending immigration proceedings. An alien in 
removal proceedings under section 240 of the Act, or in exclusion or 
deportation proceedings under former sections 236 or 242 of the Act (as 
in effect prior to April 1, 1997), and who wishes to apply for T-1 
nonimmigrant status must file an application for T nonimmigrant status 
directly with USCIS. In its discretion, DHS may agree to the alien's 
request to file with the immigration judge or the Board a joint motion 
to administratively close or terminate proceedings without prejudice, 
whichever is appropriate, while an application for T nonimmigrant 
status is adjudicated by USCIS.
    (ii) Applicants with final orders of removal, deportation, or 
exclusion. An alien subject to a final order of removal, deportation, 
or exclusion may file an application for T-1 nonimmigrant status 
directly with USCIS. The filing of an application for T nonimmigrant 
status has no effect on DHS authority or discretion to execute a final 
order of removal, although the alien may request an administrative stay 
of removal pursuant to 8 CFR 241.6(a). If the alien is in detention 
pending execution of the final order, the period of detention (under 
the standards of 8 CFR 241.4) reasonably necessary to bring about the 
applicant's removal will be extended during the period the stay is in 
effect. If USCIS subsequently determines under the procedures in 
paragraph (e) of this section that the application is bona fide, DHS 
will automatically grant an administrative stay of the final order of 
removal, deportation, or exclusion, and the stay will remain in effect 
until a final decision is made on the application for T nonimmigrant 
status.
    (iii) Minor applicants. When USCIS receives an application from a 
minor principal alien under the age of 18, USCIS will notify the 
Department of Health and Human Services to facilitate the provision of 
interim assistance.
    (2) Initial evidence. An application for T nonimmigrant status must 
include:
    (i) The applicant's signed statement describing the facts of the 
victimization and compliance with any reasonable law enforcement 
request (or a basis for why he or she has not complied) and any other 
eligibility requirements in his or her own words;
    (ii) Any credible evidence that the applicant would like USCIS to 
consider supporting any of the eligibility requirements set out in 
paragraphs (f), (g), (h) and (i) of this section; and
    (iii) Inadmissible applicants. If an applicant is inadmissible 
based on a ground that may be waived, he or she must also submit a 
request for a waiver of inadmissibility on the form designated by USCIS 
with the fee prescribed by 8 CFR 103.7(b)(1), in accordance with form 
instructions and 8 CFR 212.16, and accompanied by supporting evidence.
    (3) Evidence from law enforcement. An applicant may wish to submit 
evidence from an LEA to help establish certain eligibility requirements 
for T nonimmigrant status. Evidence from an LEA is optional and is not 
given any special evidentiary weight.
    (i) Law Enforcement Agency (LEA) endorsement. An LEA endorsement is 
optional evidence that can be submitted to help demonstrate 
victimization and/or compliance with reasonable requests. An LEA 
endorsement is not mandatory and is not given any special evidentiary 
weight. An LEA endorsement itself does not grant a benefit and is one 
form of possible evidence but it does not lead to automatic approval of 
the application for T nonimmigrant status by USCIS. If provided, the 
LEA endorsement must be submitted on the form designated by USCIS in 
accordance with the form instructions and must be signed by a 
supervising official responsible for the detection, investigation or 
prosecution of severe forms of trafficking in persons. The LEA 
endorsement must attach the results of any name or database inquiries 
performed and describe the victimization (including dates where known) 
and the cooperation of the victim. USCIS, not the LEA, will determine 
if the applicant was or is a victim of a severe form of trafficking in 
persons, and otherwise meets the eligibility requirements for T 
nonimmigrant status. The decision whether to complete an LEA 
endorsement is at the discretion of the LEA. A formal investigation or 
prosecution is not required to complete an LEA endorsement.
    (ii) Disavowed or revoked LEA endorsement. An LEA may revoke or 
disavow the contents of a previously submitted endorsement in writing. 
After revocation or disavowal, the LEA endorsement will no longer be 
considered as evidence.
    (iii) Continued Presence. An applicant granted Continued Presence 
under 28 CFR 110.35 should submit documentation of the grant of 
Continued Presence. If Continued Presence has been revoked, it will no 
longer be considered as evidence.
    (iv) Other evidence. An applicant may also submit any evidence 
regarding entry or admission into the United States or permission to 
remain in the United States or note that such evidence is contained in 
an applicant's immigration file.
    (4) Biometric services. All applicants for T-1 nonimmigrant status 
must submit biometrics in accordance with 8 CFR 103.16.
    (5) Evidentiary standards and burden of proof. The burden is on the 
applicant to demonstrate eligibility for T-1 nonimmigrant status. The 
applicant may submit any credible evidence relating to a T nonimmigrant 
application for consideration by USCIS. USCIS will conduct a de novo 
review of all evidence and may investigate any aspect of the 
application. Evidence previously submitted by the applicant for any 
immigration benefit or relief may be used by USCIS in evaluating the 
eligibility of an applicant for T-1 nonimmigrant status. USCIS will not 
be bound by previous factual determinations made in connection with a 
prior application or petition for any immigration benefit or relief. 
USCIS will determine, in its sole discretion, the evidentiary value of 
previously or concurrently submitted evidence.
    (6) Interview. USCIS may require an applicant for T nonimmigrant 
status to participate in a personal interview. The necessity and 
location of the interview is determined solely by USCIS in accordance 
with 8 CFR part 103. Every effort will be made to schedule the 
interview in a location convenient to the applicant.
    (7) Bona fide determination. Once an alien submits an application 
for T-1 nonimmigrant status, USCIS will conduct an initial review to 
determine if the application is a bona fide

[[Page 92307]]

application for T-1 nonimmigrant status under the provisions of 
paragraph (e) of this section.
    (8) Decision. After completing its de novo review of the 
application and evidence, USCIS will issue a decision approving or 
denying the application in accordance with 8 CFR 103.3.
    (9) Approval. If USCIS determines that the applicant is eligible 
for T-1 nonimmigrant status, USCIS will approve the application and 
grant T-1 nonimmigrant status, subject to the annual limitation as 
provided in paragraph (j) of this section. USCIS will provide the 
applicant with evidence of T-1 nonimmigrant status. USCIS may also 
notify other parties and entities of the approval as it determines 
appropriate, including any LEA providing an LEA endorsement and the 
Department of Health and Human Service's Office of Refugee 
Resettlement, consistent with 8 U.S.C. 1367.
    (i) Applicants with an outstanding order of removal, deportation or 
exclusion issued by DHS. For an applicant who is the subject of an 
order of removal, deportation or exclusion issued by DHS, the order 
will be deemed cancelled by operation of law as of the date of the 
USCIS approval of the application.
    (ii) Applicants with an outstanding order of removal, deportation 
or exclusion issued by the Department of Justice. An applicant who is 
the subject of an order of removal, deportation or exclusion issued by 
an immigration judge or the Board may seek cancellation of such order 
by filing a motion to reopen and terminate removal proceedings with the 
immigration judge or the Board. ICE may agree, as a matter of 
discretion, to join such motion to overcome any applicable time and 
numerical limitations of 8 CFR 1003.2 and 1003.23.
    (10) Denial. Upon denial of an application, USCIS will notify the 
applicant in accordance with 8 CFR 103.3. USCIS may also notify any LEA 
providing an LEA endorsement and the Department of Health and Human 
Service's Office of Refugee Resettlement. If an applicant appeals a 
denial in accordance with 8 CFR 103.3, the denial will not become final 
until the administrative appeal is decided.
    (i) Effect on bona fide determination. Upon denial of an 
application, any benefits derived from a bona fide determination will 
automatically be revoked when the denial becomes final.
    (ii) Applicants previously in removal proceedings. In the case of 
an applicant who was previously in removal proceedings that were 
terminated on the basis of a pending application for T nonimmigrant 
status, once a denial becomes final, DHS may file a new Notice to 
Appear to place the individual in removal proceedings again.
    (iii) Applicants subject to an order of removal, deportation or 
exclusion. In the case of an applicant who is subject to an order of 
removal, deportation or exclusion that had been stayed due to the 
pending application for T nonimmigrant status, the stay will be 
automatically lifted as of the date the denial becomes final.
    (11) Employment authorization. An alien granted T-1 nonimmigrant 
status is authorized to work incident to status. There is no need for 
an alien to file a separate form to be granted employment 
authorization. USCIS will issue an initial Employment Authorization 
Document (EAD) to such aliens, which will be valid for the duration of 
the alien's T-1 nonimmigrant status. An alien granted T-1 nonimmigrant 
status seeking to replace an EAD that was lost, stolen, or destroyed 
must file an application on the form designated by USCIS in accordance 
with form instructions.
    (e) Bona fide determination. Once an alien submits an application 
for T-1 nonimmigrant status, USCIS will conduct an initial review to 
determine if the application is a bona fide application for T-1 
nonimmigrant status.
    (1) Criteria. After initial review, an application will be 
determined to be bona fide if:
    (i) The application is properly filed and is complete;
    (ii) The application does not appear to be fraudulent;
    (iii) The application presents prima facie evidence of each 
eligibility requirement for T-1 nonimmigrant status;
    (iv) Biometrics and background checks are complete; and
    (v) The applicant is:
    (A) Admissible to the United States; or
    (B) Inadmissible to the United States based on a ground that may be 
waived (other than section 212(a)(4) of the Act); and either the 
applicant has filed a waiver of a ground of inadmissibility described 
in section 212(d)(13) of the Act concurrently with the application for 
T nonimmigrant status, or USCIS has already granted a waiver with 
respect to any ground of inadmissibility that applies to the applicant. 
USCIS may request further evidence from the applicant. All waivers are 
discretionary and require a request for waiver, on the form designated 
by USCIS.
    (2) USCIS determination. An application will not be treated as bona 
fide until USCIS provides notice to the applicant.
    (i) Incomplete or insufficient application. If an application is 
incomplete or if an application is complete but does not present 
sufficient evidence to establish prima facie eligibility for each 
eligibility requirement for T-1 nonimmigrant status, USCIS may request 
additional information, issue a notice of intent to deny as provided in 
8 CFR 103.2(b)(8), or may adjudicate the application on the basis of 
the evidence presented under the procedures of this section.
    (ii) Notice. Once USCIS determines an application is bona fide, 
USCIS will notify the applicant. An application will be treated as a 
bona fide application as of the date of the notice.
    (3) Stay of final order of removal, deportation, or exclusion. If 
USCIS determines that an application is bona fide it automatically 
stays the execution of any final order of removal, deportation, or 
exclusion. This administrative stay will remain in effect until any 
adverse decision becomes final. The filing of an application for T 
nonimmigrant status does not automatically stay the execution of a 
final order unless USCIS has determined that the application is bona 
fide. Neither an immigration judge nor the Board has jurisdiction to 
adjudicate an application for a stay of removal, deportation, or 
exclusion on the basis of the filing of an application for T 
nonimmigrant status.
    (f) Victim of a severe form of trafficking in persons. To be 
eligible for T-1 nonimmigrant status an applicant must meet the 
definition of a victim of a severe form of trafficking in persons 
described in paragraph (a) of this section.
    (1) Evidence. The applicant must submit evidence that demonstrates 
that he or she is or has been a victim of a severe form of trafficking 
in persons. Except in instances of sex trafficking involving victims 
under 18 years of age, severe forms of trafficking in persons must 
involve both a particular means (force, fraud, or coercion) and a 
particular end or a particular intended end (sex trafficking, 
involuntary servitude, peonage, debt bondage, or slavery). If a victim 
has not performed labor or services, or a commercial sex act, the 
victim must establish that he or she was recruited, transported, 
harbored, provided, or obtained for the purposes of subjection to sex 
trafficking, involuntary servitude, peonage, debt bondage, or slavery, 
or patronized or solicited for the purposes of subjection

[[Page 92308]]

to sex trafficking. The applicant may satisfy this requirement by 
submitting:
    (i) An LEA endorsement as described in paragraph (d)(3) of this 
section;
    (ii) Documentation of a grant of Continued Presence under 28 CFR 
1100.35; or
    (iii) Any other evidence, including but not limited to, trial 
transcripts, court documents, police reports, news articles, copies of 
reimbursement forms for travel to and from court, and/or affidavits. In 
the victim's statement prescribed by paragraph (d)(2) of this section, 
the applicant should describe what the alien has done to report the 
crime to an LEA and indicate whether criminal records relating to the 
trafficking crime are available.
    (2) If the Continued Presence has been revoked or the contents of 
the LEA endorsement have been disavowed based on a determination that 
the applicant is not or was not a victim of a severe form of 
trafficking in persons, it will no longer be considered as evidence.
    (g) Physical presence. To be eligible for T-1 nonimmigrant status 
an applicant must be physically present in the United States, American 
Samoa, or at a port-of-entry thereto on account of such trafficking.
    (1) Applicability. The physical presence requirement requires USCIS 
to consider the alien's presence in the United States at the time of 
application. The requirement reaches an alien who:
    (i) Is present because he or she is currently being subjected to a 
severe form of trafficking in persons;
    (ii) Was liberated from a severe form of trafficking in persons by 
an LEA;
    (iii) Escaped a severe form of trafficking in persons before an LEA 
was involved, subject to paragraph (g)(2) of this section;
    (iv) Was subject to a severe form of trafficking in persons at some 
point in the past and whose continuing presence in the United States is 
directly related to the original trafficking in persons; or
    (v) Is present on account of the alien having been allowed entry 
into the United States for participation in investigative or judicial 
processes associated with an act or perpetrator of trafficking.
    (2) Departure from the United States. An alien who has voluntarily 
departed from (or has been removed from) the United States at any time 
after the act of a severe form of trafficking in persons is deemed not 
to be present in the United States as a result of such trafficking in 
persons unless:
    (i) The alien's reentry into the United States was the result of 
the continued victimization of the alien;
    (ii) The alien is a victim of a new incident of a severe form of 
trafficking in persons; or
    (iii) The alien has been allowed reentry into the United States for 
participation in investigative or judicial processes associated with an 
act or perpetrator of trafficking, described in paragraph (g)(4) of 
this section.
    (3) Presence for participation in investigative or judicial 
processes. An alien who was allowed initial entry or reentry into the 
United States for participation in investigative or judicial processes 
associated with an act or perpetrator of trafficking will be deemed to 
be physically present in the United States on account of trafficking in 
persons, regardless of where such trafficking occurred. To satisfy this 
section, an alien must submit documentation to show valid entry into 
the United States and evidence that this valid entry is for 
participation in investigative or judicial processes associated with an 
act or perpetrator of trafficking.
    (4) Evidence. The applicant must submit evidence that demonstrates 
that his or her physical presence in the United States or at a port-of-
entry thereto, is on account of trafficking in persons, including 
physical presence on account of the alien having been allowed entry 
into the United States for participation in investigative or judicial 
processes associated with an act or a perpetrator of trafficking. USCIS 
will consider all evidence presented to determine the physical presence 
requirement, including the alien's responses to questions on the 
application for T nonimmigrant status about when he or she escaped from 
the trafficker, what activities he or she has undertaken since that 
time including the steps he or she may have taken to deal with the 
consequences of having been trafficked, and the applicant's ability to 
leave the United States. The applicant may satisfy this requirement by 
submitting:
    (i) An LEA endorsement, described in paragraph (d)(3) of this 
section;
    (ii) Documentation of a grant of Continued Presence under 28 CFR 
1100.35;
    (iii) Any other documentation of entry into the United States or 
permission to remain in the United States, such as parole under section 
212(d)(5) of the Act, or a notation that such evidence is contained in 
the applicant's immigration file; or
    (iv) Any other credible evidence, including a personal statement 
from the applicant, stating the date and place (if known) and the 
manner and purpose (if known) for which the applicant entered the 
United States and demonstrating that the applicant is now present on 
account of the trafficking.
    (h) Compliance with any reasonable request for assistance in an 
investigation or prosecution. To be eligible for T-1 nonimmigrant 
status, an applicant must have complied with any reasonable request for 
assistance from an LEA in an investigation or prosecution of acts of 
trafficking or the investigation of a crime where acts of trafficking 
are at least one central reason for the commission of that crime, 
unless the applicant meets an exemption described in paragraph (h)(4) 
of this section.
    (1) Applicability. An applicant must have had, at a minimum, 
contact with an LEA regarding the acts of a severe form of trafficking 
in persons. An applicant who has never had contact with an LEA 
regarding the acts of a severe form of trafficking in persons will not 
be eligible for T-1 nonimmigrant status, unless he or she meets an 
exemption described in paragraph (h)(4) of this section.
    (2) Unreasonable requests. An applicant need only show compliance 
with reasonable requests made by an LEA for assistance in the 
investigation or prosecution of the acts of trafficking in persons. The 
reasonableness of the request depends on the totality of the 
circumstances. Factors to consider include, but are not limited to:
    (i) General law enforcement and prosecutorial practices;
    (ii) The nature of the victimization;
    (iii) The specific circumstances of the victim;
    (iv) Severity of trauma suffered (both mental and physical) or 
whether the request would cause further trauma;
    (v) Access to support services;
    (vi) The safety of the victim or the victim's family;
    (vii) Compliance with previous requests and the extent of such 
compliance;
    (viii) Whether the request would yield essential information;
    (ix) Whether the information could be obtained without the victim's 
compliance;
    (x) Whether an interpreter or attorney was present to help the 
victim understand the request;
    (xi) Cultural, religious, or moral objections to the request;
    (xii) The time the victim had to comply with the request; and
    (xiii) The age and maturity of the victim.
    (3) Evidence. An applicant must submit evidence that demonstrates 
that he or she has complied with any reasonable request for assistance 
in a

[[Page 92309]]

Federal, State, or local investigation or prosecution of trafficking in 
persons, or a crime where trafficking in persons is at least one 
central reason for the commission of that crime. In the alternative, an 
applicant can submit evidence to demonstrate that he or she should be 
exempt under paragraph (h)(4) of this section. If USCIS has any 
question about whether the applicant has complied with a reasonable 
request for assistance, USCIS may contact the LEA. The applicant may 
satisfy this requirement by submitting any of the following:
    (i) An LEA endorsement as described in paragraph (d)(3) of this 
section;
    (ii) Documentation of a grant of Continued Presence under 28 CFR 
1100.35; or
    (iii) Any other evidence, including affidavits of witnesses. In the 
victim's statement prescribed by paragraph (d)(2) of this section, the 
applicant should show that an LEA that has responsibility and authority 
for the detection, investigation, or prosecution of severe forms of 
trafficking in persons has information about such trafficking in 
persons, that the victim has complied with any reasonable request for 
assistance in the investigation or prosecution of such acts of 
trafficking, and, if the victim did not report the crime, why the crime 
was not previously reported.
    (4) An applicant who has not had contact with an LEA or who has not 
complied with any reasonable request may be exempt from the requirement 
to comply with any reasonable request for assistance in an 
investigation or prosecution if either of the following two 
circumstances applies:
    (i) Trauma. The applicant is unable to cooperate with a reasonable 
request for assistance in the Federal, State, or local investigation or 
prosecution of acts of trafficking in persons due to physical or 
psychological trauma. An applicant must submit evidence of the trauma. 
An applicant may satisfy this by submitting an affirmative statement 
describing the trauma and any other credible evidence. ``Any other 
credible evidence'' includes, for instance, a signed statement from a 
qualified professional, such as a medical professional, social worker, 
or victim advocate, who attests to the victim's mental state, and 
medical, psychological, or other records which are relevant to the 
trauma. USCIS reserves the authority and discretion to contact the LEA 
involved in the case, if appropriate; or
    (ii) Age. The applicant is under 18 years of age. An applicant 
under 18 years of age is exempt from the requirement to comply with any 
reasonable request for assistance in an investigation or prosecution, 
but he or she must submit evidence of age. Applicants should include, 
where available, an official copy of the alien's birth certificate, a 
passport, or a certified medical opinion. Other evidence regarding the 
age of the applicant may be submitted in accordance with 8 CFR 
103.2(b)(2)(i).
    (i) Extreme hardship involving unusual and severe harm. To be 
eligible for T-1 nonimmigrant status, an applicant must demonstrate 
that removal from the United States would subject the applicant to 
extreme hardship involving unusual and severe harm.
    (1) Standard. Extreme hardship involving unusual and severe harm is 
a higher standard than extreme hardship as described in 8 CFR 240.58. A 
finding of extreme hardship involving unusual and severe harm may not 
be based solely upon current or future economic detriment, or the lack 
of, or disruption to, social or economic opportunities. The 
determination of extreme hardship is made solely by USCIS.
    (2) Factors. Factors that may be considered in evaluating whether 
removal would result in extreme hardship involving unusual and severe 
harm should include both traditional extreme hardship factors and 
factors associated with having been a victim of a severe form of 
trafficking in persons. These factors include, but are not limited to:
    (i) The age, maturity, and personal circumstances of the applicant;
    (ii) Any physical or psychological issues the applicant has which 
necessitates medical or psychological care not reasonably available in 
the foreign country;
    (iii) The nature and extent of the physical and psychological 
consequences of having been a victim of a severe form of trafficking in 
persons;
    (iv) The impact of the loss of access to the United States courts 
and the criminal justice system for purposes relating to the incident 
of a severe form of trafficking in persons or other crimes perpetrated 
against the applicant, including criminal and civil redress for acts of 
trafficking in persons, criminal prosecution, restitution, and 
protection;
    (v) The reasonable expectation that the existence of laws, social 
practices, or customs in the foreign country to which the applicant 
would be returned would penalize the applicant severely for having been 
the victim of a severe form of trafficking in persons;
    (vi) The likelihood of re-victimization and the need, ability, and 
willingness of foreign authorities to protect the applicant;
    (vii) The likelihood of harm that the trafficker in persons or 
others acting on behalf of the trafficker in the foreign country would 
cause the applicant; or
    (viii) The likelihood that the applicant's individual safety would 
be threatened by the existence of civil unrest or armed conflict.
    (3) Evidence. An applicant must submit evidence that demonstrates 
he or she would suffer extreme hardship involving unusual and severe 
harm if removed from the United States. An applicant is encouraged to 
describe and document all factors that may be relevant to the case, as 
there is no guarantee that a particular reason(s) will satisfy the 
requirement. Hardship to persons other than the alien victim cannot be 
considered in determining whether an applicant would suffer the 
requisite hardship. The applicant may satisfy this requirement by 
submitting any credible evidence regarding the nature and scope of the 
hardship if the applicant was removed from the United States, including 
evidence of hardship arising from circumstances surrounding the 
victimization and any other circumstances. An applicant may submit a 
personal statement or other evidence, including evidence from relevant 
country condition reports and any other public or private sources of 
information.
    (j) Annual cap. In accordance with section 214(o)(2) of the Act, 
DHS may not grant T-1 nonimmigrant status to more than 5,000 aliens in 
any fiscal year.
    (1) Waiting list. All eligible applicants who, due solely to the 
cap, are not granted T-1 nonimmigrant status will be placed on a 
waiting list and will receive written notice of such placement. 
Priority on the waiting list will be determined by the date the 
application was properly filed, with the oldest applications receiving 
the highest priority. In the next fiscal year, USCIS will issue a 
number to each application on the waiting list, in the order of the 
highest priority, providing the applicant remains admissible and 
eligible for T nonimmigrant status. After T-1 nonimmigrant status has 
been issued to qualifying applicants on the waiting list, any remaining 
T-1 nonimmigrant numbers for that fiscal year will be issued to new 
qualifying applicants in the order that the applications were properly 
filed.
    (2) Unlawful presence. While an applicant for T nonimmigrant status 
who was granted deferred action or parole is on the waiting list, the 
applicant will not accrue unlawful

[[Page 92310]]

presence under section 212(a)(9)(B) of the Act while maintaining parole 
or deferred action.
    (3) Removal from the waiting list. An applicant may be removed from 
the waiting list and the deferred action or parole may be terminated 
consistent with law and policy. Applicants on the waiting list must 
remain admissible to the United States and otherwise eligible for T 
nonimmigrant status. If at any time prior to final adjudication USCIS 
receives information that an applicant is no longer eligible for 
nonimmigrant status, the applicant may be removed from the waiting list 
and the deferred action or parole may be terminated. USCIS will provide 
notice to the applicant of that decision.
    (k) Application for eligible family members. (1) Eligibility. 
Subject to section 214(o) of the Act, an alien who has applied for or 
has been granted T-1 nonimmigrant status (principal alien) may apply 
for the admission of an eligible family member, who is otherwise 
admissible to the United States, in derivative T nonimmigrant status if 
accompanying or following to join the principal alien.
    (i) Principal alien 21 years of age or older. For a principal alien 
who is 21 years of age or over, eligible family member means a T-2 
(spouse) or T-3 (child).
    (ii) Principal alien under 21 years of age. For a principal alien 
who is under 21 years of age, eligible family member means a T-2 
(spouse), T-3 (child), T-4 (parent), or T-5 (unmarried sibling under 
the age of 18).
    (iii) Family member facing danger of retaliation. Regardless of the 
age of the principal alien, if the eligible family member faces a 
present danger of retaliation as a result of the principal alien's 
escape from the severe form of trafficking or cooperation with law 
enforcement, in consultation with the law enforcement officer 
investigating a severe form of trafficking, eligible family member 
means a T-4 (parent), T-5 (unmarried sibling under the age of 18), or 
T-6 (adult or minor child of a derivative of the principal alien).
    (iv) Admission requirements. The principal applicant must 
demonstrate that the alien for whom derivative T nonimmigrant status is 
being sought is an eligible family member of the T-1 principal alien, 
as defined in paragraph (a) of this section, and is otherwise eligible 
for that status.
    (2) Application. A T-1 principal alien may submit an application 
for derivative T nonimmigrant status on the form designated by USCIS in 
accordance with the form instructions. The application for derivative T 
nonimmigrant status for an eligible family member may be filed with the 
T-1 application, or separately. Derivative T nonimmigrant status is 
dependent on the principal alien having been granted T-1 nonimmigrant 
status and the principal alien maintaining T-1 nonimmigrant status. If 
a principal alien granted T-1 nonimmigrant status cannot maintain 
status due to his or her death, the provisions of section 204(l) of the 
Act may apply.
    (i) Eligible family members in pending immigration proceedings. If 
an eligible family member is in removal proceedings under section 240 
of the Act, or in exclusion or deportation proceedings under former 
sections 236 or 242 of the Act (as in effect prior to April 1, 1997), 
the principal alien must file an application for derivative T 
nonimmigrant status directly with USCIS. In its discretion and at the 
request of the eligible family member, ICE may agree to file a joint 
motion to administratively close or terminate proceedings without 
prejudice with the immigration judge or the Board, whichever is 
appropriate, while USCIS adjudicates an application for derivative T 
nonimmigrant status.
    (ii) Eligible family members with final orders of removal, 
deportation, or exclusion. If an eligible family member is the subject 
of a final order of removal, deportation, or exclusion, the principal 
alien may file an application for derivative T nonimmigrant status 
directly with USCIS. The filing of an application for derivative T 
nonimmigrant status has no effect on ICE's authority or discretion to 
execute a final order, although the alien may file a request for an 
administrative stay of removal pursuant to 8 CFR 241.6(a). If the 
eligible family member is in detention pending execution of the final 
order, the period of detention (under the standards of 8 CFR 241.4) 
will be extended while a stay is in effect for the period reasonably 
necessary to bring about the applicant's removal.
    (3) Required supporting evidence. In addition to the form, an 
application for derivative T nonimmigrant status must include the 
following:
    (i) Biometrics submitted in accordance with 8 CFR 103.16;
    (ii) Evidence demonstrating the relationship of an eligible family 
member, as provided in paragraph (k)(4) of this section;
    (iii) In the case of an alien seeking derivative T nonimmigrant 
status on the basis of danger of retaliation, evidence demonstrating 
this danger as provided in paragraph (k)(6) of this section.
    (iv) Inadmissible applicants. If an eligible family member is 
inadmissible based on a ground that may be waived, a request for a 
waiver of inadmissibility under section 212(d)(13) or section 212(d)(3) 
of the Act must be filed in accordance with 8 CFR 212.16 and submitted 
with the completed application package.
    (4) Relationship. Except as described in paragraphs (k)(5) of this 
section, the family relationship must exist at the time:
    (i) The application for the T-1 nonimmigrant status is filed;
    (ii) The application for the T-1 nonimmigrant status is 
adjudicated;
    (iii) The application for derivative T nonimmigrant status is 
filed;
    (iv) The application for derivative T nonimmigrant status is 
adjudicated; and
    (v) The eligible family member is admitted to the United States if 
residing abroad.
    (5) Relationship and age-out protections. (i) Protection for new 
child of a principal alien. If the T-1 principal alien proves that he 
or she had a child after filing the application for T-1 nonimmigrant 
status, the child will be deemed to be an eligible family member 
eligible to accompany or follow to join the T-1 principal alien.
    (ii) Age-out protection for eligible family members of a principal 
alien under 21 years of age. If the T-1 principal alien was under 21 
years of age when he or she filed for T-1 nonimmigrant status, USCIS 
will continue to consider a parent or unmarried sibling as an eligible 
family member. A parent or unmarried sibling will remain eligible even 
if the principal alien turns 21 years of age before adjudication of the 
T-1 application. An unmarried sibling will remain eligible even if the 
unmarried sibling is over 18 years of age at the time of adjudication 
of the T-1 application, so long as the unmarried sibling was under 18 
years of age at the time of the T-1 application. The age of an 
unmarried sibling when USCIS adjudicates the T-1 application, when the 
unmarried sibling files the derivative application, when USCIS 
adjudicates the derivative application, or when the unmarried sibling 
is admitted to the United States does not affect eligibility.
    (iii) Age-out protection for child of a principal alien 21 years of 
age or older. If a T-1 principal alien was 21 years of age or older 
when he or she filed for T-1 nonimmigrant status, USCIS will continue 
to consider a child as an eligible family member if the child was under 
21 years of age at the time the principal filed for T-1 nonimmigrant 
status. The child will remain eligible even if the child is over 21 
years of age at the time of adjudication of the T-1

[[Page 92311]]

application. The age of the child when USCIS adjudicates the T-1 
application, when the child files the derivative application, when 
USCIS adjudicates the derivative application, or when the child is 
admitted to the United States does not affect eligibility.
    (iv) Marriage of an eligible family member. An eligible family 
member seeking T-3 or T-5 status must be unmarried when the principal 
files an application for T-1 status, when USCIS adjudicates the T-1 
application, when the eligible family member files for T-3 or T-5 
status, when USCIS adjudicates the T-3 or T-5 application, and when the 
family member is admitted to the United States. If a T-1 marries 
subsequent to filing the application for T-1 status, USCIS will not 
consider the spouse eligible as a T-2 eligible family member.
    (6) Evidence demonstrating a present danger of retaliation. An 
alien seeking derivative T nonimmigrant status on the basis of facing a 
present danger of retaliation as a result of the T-1 victim's escape 
from a severe form of trafficking or cooperation with law enforcement, 
must demonstrate the basis of this danger. USCIS may contact the LEA 
involved, if appropriate. An applicant may satisfy this requirement by 
submitting:
    (i) Documentation of a previous grant of advance parole to an 
eligible family member;
    (ii) A signed statement from a law enforcement official describing 
the danger of retaliation;
    (iii) An affirmative statement from the applicant describing the 
danger the family member faces and how the danger is linked to the 
victim's escape or cooperation with law enforcement (ordinarily an 
applicant's statement alone is not sufficient to prove present danger); 
and/or
    (iv) Any other credible evidence, including trial transcripts, 
court documents, police reports, news articles, copies of reimbursement 
forms for travel to and from court, and affidavits from other 
witnesses.
    (7) Biometric collection; evidentiary standards. The provisions for 
biometric capture and evidentiary standards described in paragraph 
(d)(2) and (d)(4) of this section apply to an eligible family member's 
application for derivative T nonimmigrant status.
    (8) Review and decision. USCIS will review the application and 
issue a decision in accordance with paragraph (d) of this section.
    (9) Derivative approvals. Aliens whose applications for derivative 
T nonimmigrant status are approved are not subject to the annual cap 
described in paragraph (j) of this section. USCIS will not approve 
applications for derivative T nonimmigrant status until USCIS has 
approved T-1 nonimmigrant status to the related principal alien.
    (i) Approvals for eligible family members in the United States. 
When USCIS approves an application for derivative T nonimmigrant status 
for an eligible family member in the United States, USCIS will 
concurrently approve derivative T nonimmigrant status. USCIS will 
notify the T-1 principal alien of such approval and provide evidence of 
derivative T nonimmigrant status to the derivative.
    (ii) Approvals for eligible family members outside the United 
States. When USCIS approves an application for an eligible family 
member outside the United States, USCIS will notify the T-1 principal 
alien of such approval and provide the necessary documentation to the 
Department of State for consideration of visa issuance.
    (10) Employment authorization. An alien granted derivative T 
nonimmigrant status may apply for employment authorization by filing an 
application on the form designated by USCIS with the fee prescribed in 
8 CFR 103.7(b)(1) in accordance with form instructions. For derivatives 
in the United States, the application may be filed concurrently with 
the application for derivative T nonimmigrant status or at any later 
time. For derivatives outside the United States, an application for 
employment authorization may only be filed after admission to the 
United States in T nonimmigrant status. If the application for 
employment authorization is approved, the derivative alien will be 
granted employment authorization pursuant to 8 CFR 274a.12(c)(25) for 
the period remaining in derivative T nonimmigrant status.
    (l) Extension of T nonimmigrant status. (1) Eligibility. USCIS may 
grant extensions of T-1 nonimmigrant status beyond 4 years from the 
date of approval in 1-year periods from the date the T-1 nonimmigrant 
status ends if:
    (i) An LEA investigating or prosecuting 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;
    (ii) The Secretary of Homeland Security determines that an 
extension is warranted due to exceptional circumstances; or
    (iii) The alien has a pending application for adjustment of status 
to that of a lawful permanent resident.
    (2) Application for a discretionary extension of status. Upon 
application, USCIS may extend T-1 nonimmigrant status based on law 
enforcement need or exceptional circumstances. A T-1 nonimmigrant may 
apply for an extension by submitting the form designated by USCIS with 
the prescribed fee and in accordance with form instructions. A T-1 
nonimmigrant should indicate on the application whether USCIS should 
apply the extension to any family member holding derivative T 
nonimmigrant status.
    (3) Timely filing. An alien should file the application to extend 
nonimmigrant status before the expiration of T-1 nonimmigrant status. 
If T-1 nonimmigrant status has expired, the applicant must explain in 
writing the reason for the untimely filing. USCIS may exercise its 
discretion to approve an untimely filed application for extension of T 
nonimmigrant status.
    (4) Evidence. In addition to the application, a T-1 nonimmigrant 
must include evidence to support why USCIS should grant an extension of 
T nonimmigrant status. The nonimmigrant bears the burden of 
establishing eligibility for an extension of status.
    (5) Evidence of law enforcement need. An applicant may demonstrate 
law enforcement need by submitting evidence that comes directly from an 
LEA, including:
    (i) A new LEA endorsement;
    (ii) Evidence from a law enforcement official, prosecutor, judge, 
or other authority who can investigate or prosecute human trafficking 
activity, such as a letter on the agency's letterhead, email, or fax; 
or
    (iii) Any other credible evidence.
    (6) Evidence of exceptional circumstances. An applicant may 
demonstrate exceptional circumstances by submitting:
    (i) The applicant's affirmative statement; or
    (ii) Any other credible evidence, including medical records, police 
or court records, news articles, correspondence with an embassy or 
consulate, and affidavits of witnesses.
    (7) Mandatory extensions of status for adjustment of status 
applicants. USCIS will automatically extend T-1 nonimmigrant status 
when a T nonimmigrant properly files an application for adjustment of 
status in accordance with 8 CFR 245.23. No separate application for 
extension of T nonimmigrant status, or supporting evidence, is 
required.
    (m) Revocation of approved T nonimmigrant status. (1) Automatic 
revocation of derivative status. An approved application for derivative 
T nonimmigrant status will be revoked automatically if the beneficiary 
of the approved derivative application notifies

[[Page 92312]]

USCIS that he or she will not apply for admission to the United States.
    (2) Revocation on notice/grounds for revocation. USCIS may revoke 
an approved application for T nonimmigrant status following issuance of 
a notice of intent to revoke. USCIS may revoke an approved application 
for T nonimmigrant status based on one or more of the following 
reasons:
    (i) The approval of the application violated the requirements of 
section 101(a)(15)(T) of the Act or 8 CFR 214.11 or involved error in 
preparation, procedure, or adjudication that affects the outcome;
    (ii) In the case of a T-2 spouse, the alien's divorce from the T-1 
principal alien has become final;
    (iii) In the case of a T-1 principal alien, an LEA with 
jurisdiction to detect or investigate the acts of severe forms of 
trafficking in persons notifies USCIS that the alien has refused to 
comply with reasonable requests to assist with the investigation or 
prosecution of the trafficking in persons and provides USCIS with a 
detailed explanation in writing; or
    (iv) The LEA that signed the LEA endorsement withdraws it or 
disavows its contents and notifies USCIS and provides a detailed 
explanation of its reasoning in writing.
    (3) Procedures. Procedures for revocation and appeal follow 8 CFR 
103.3. If USCIS revokes approval of the previously granted T 
nonimmigrant status application, USCIS may notify the LEA who signed 
the LEA endorsement, any consular officer having jurisdiction over the 
applicant, or the Office of Refugee Resettlement of the Department of 
Health and Human Services.
    (4) Effect of revocation. Revocation of a principal alien's 
application for T-1 nonimmigrant status will result in termination of 
T-1 status for the principal alien and, consequently, the automatic 
termination of the derivative T nonimmigrant status for all 
derivatives. If a derivative application is pending at the time of 
revocation, it will be denied. Revocation of an approved application 
for T-1 nonimmigrant status or an application for derivative T 
nonimmigrant status also revokes any waiver of inadmissibility granted 
in conjunction with such application. The revocation of an alien's T-1 
status will have no effect on the annual cap described in paragraph (j) 
of this section.
    (n) Removal proceedings. Nothing in this section prohibits DHS from 
instituting removal proceedings for conduct committed after admission, 
or for conduct or a condition that was not disclosed prior to the 
granting of T nonimmigrant status, including misrepresentations of 
material facts in the application for T-1 nonimmigrant status or in an 
application for derivative T nonimmigrant status, or after revocation 
of T nonimmigrant status.
    (o) USCIS employee referral. Any USCIS employee who, while carrying 
out his or her official duties, comes into contact with an alien 
believed to be a victim of a severe form of trafficking in persons and 
is not already working with an LEA should consult, as necessary, with 
the ICE officials responsible for victim protection, trafficking 
investigations and prevention, and deterrence. The ICE office may, in 
turn, refer the victim to another LEA with responsibility for 
investigating or prosecuting severe forms of trafficking in persons. If 
the alien has a credible claim to victimization, USCIS may advise the 
alien that he or she can submit an application for T nonimmigrant 
status and seek any other benefit or protection for which he or she may 
be eligible, provided doing so would not compromise the alien's safety.
    (p) Restrictions on use and disclosure of information relating to 
applicants for T nonimmigrant classification. (1) The use or disclosure 
(other than to a sworn officer or employee of DHS, the Department of 
Justice, the Department of State, or a bureau or agency of any of those 
departments, for legitimate department, bureau, or agency purposes) of 
any information relating to the beneficiary of a pending or approved 
application for T nonimmigrant status is prohibited unless the 
disclosure is made in accordance with an exception described in 8 
U.S.C. 1367(b).
    (2) Information protected under 8 U.S.C. 1367(a)(2) may be 
disclosed to federal prosecutors to comply with constitutional 
obligations to provide statements by witnesses and certain other 
documents to defendants in pending federal criminal proceedings.
    (3) Agencies receiving information under this section, whether 
governmental or non-governmental, are bound by the confidentiality 
provisions and other restrictions set out in 8 U.S.C. 1367.
    (4) DHS officials are prohibited from making adverse determinations 
of admissibility or deportability based on information obtained solely 
from the trafficker, unless the alien has been convicted of a crime or 
crimes listed in section 237(a)(2) of the Act.

PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR 
PERMANENT RESIDENCE

0
7. The authority citation for part 245 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1255; Pub. L. 105-100, 
section 202, 111 Stat. 2160, 2193; Pub. L. 105-277, section 902, 112 
Stat. 2681; Pub. L. 110-229, tit. VII, 122 Stat. 754; 8 CFR part 2.


0
8. Section 245.23(a)(3) and (b)(2) are revised to read as follows:


Sec.  245.23  Adjustment of aliens in T nonimmigrant classification.

    (a) * * *
    (3) Has been physically present in the United States for a 
continuous period of at least 3 years since the first date of lawful 
admission as a T-1 nonimmigrant, or has been physically present in the 
United States for a continuous period during the investigation or 
prosecution of acts of trafficking and the Attorney General has 
determined that the investigation or prosecution is complete, whichever 
period is less; except
    (i) If the applicant has departed from the United States for any 
single period in excess of 90 days or for any periods in the aggregate 
exceeding 180 days, the applicant shall be considered to have failed to 
maintain continuous physical presence in the United States for purposes 
of section 245(l)(1)(A) of the Act; and
    (ii) If the alien was granted T nonimmigrant status under 8 CFR 
214.11, such alien's physical presence in the CNMI before, on, or after 
November 28, 2009, and subsequent to the grant of T nonimmigrant 
status, is considered as equivalent to presence in the United States 
pursuant to an admission in T nonimmigrant status.
* * * * *
    (b) * * *
    (2) The derivative family member was lawfully admitted to the 
United States in derivative T nonimmigrant status under section 
101(a)(15)(T)(ii) of the Act, and continues to hold such status at the 
time of application;
* * * * *

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

0
9. The authority citation for part 274a continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1324a; 48 U.S.C. 1806; 8 CFR 
part 2; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 114-
74, 129 Stat. 599.


0
10. Section 274a.12 is amended by revising paragraphs (a)(16) and 
(c)(25) to read as follows:

[[Page 92313]]

Sec.  274a.12  Classes of aliens authorized to accept employment.

    (a) * * *
    (16) Any alien in T-1 nonimmigrant status, pursuant to 8 CFR 
214.11, for the period in that status, as evidenced by an employment 
authorization document issued by USCIS to the alien.
* * * * *
    (c) * * *
    (25) Any alien in T-2, T-3, T-4, T-5, or T-6 nonimmigrant status, 
pursuant to 8 CFR 214.11, for the period in that status, as evidenced 
by an employment authorization document issued by USCIS to the alien.
* * * * *

Jeh Charles Johnson,
Secretary.
[FR Doc. 2016-29900 Filed 12-16-16; 8:45 am]
BILLING CODE 9111-97-P

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