Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for “T” Nonimmigrant Status, 34864-34943 [2024-09022]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 89, Number 84 (Tuesday, April 30, 2024)]
[Rules and Regulations]
[Pages 34864-34943]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-09022]



[[Page 34863]]

Vol. 89

Tuesday,

No. 84

April 30, 2024

Part IX





 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. 89 , No. 84 / Tuesday, April 30, 2024 / Rules 
and Regulations

[[Page 34864]]


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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 (USCIS), Department 
of Homeland Security.

ACTION: Final rule.

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SUMMARY: On December 19, 2016, the Department of Homeland Security 
(DHS) published an interim final rule (2016 interim rule) amending its 
regulations governing the requirements and procedures for victims of a 
severe form of trafficking in persons seeking T nonimmigrant status. 
The 2016 interim rule amended the regulations to conform with 
legislation enacted after the publication of the initial regulations 
and to codify discretionary changes based on DHS's experience 
implementing the T nonimmigrant status program since it was established 
in 2002. DHS is adopting the 2016 interim rule as final with several 
clarifying changes based on USCIS experience implementing the interim 
rule, in response to comments received, and due to an organizational 
change to move the regulations to a separate subpart as explained in 
the SUPPLEMENTARY INFORMATION section below. This final rule is 
intended to respond to public comments and clarify the eligibility and 
application requirements so that they conform to current law.

DATES: This rule is effective August 28, 2024.
    Comments on the Paperwork Reduction Act section of this final rule 
must be submitted by July 1, 2024.

FOR FURTHER INFORMATION CONTACT: Ren[aacute] Cutlip-Mason, Office of 
Policy and Strategy, U.S. Citizenship and Immigration Services, 
Department of Homeland Security, by mail at 5900 Capital Gateway Dr, 
Camp Springs, MD 20529-2140; or by phone at 240-721-3000 (this is not a 
toll-free number). Individuals with hearing or speech impairments may 
access the telephone numbers above via TTY by calling the toll-free 
Federal Information Relay Service at 1-877-889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Executive Summary
    A. Purpose of the Regulatory Action
    B. Summary of Changes Made in the Final Rule
    1. Definitions
    2. Bona Fide Determination Process
    3. Evidence of Extreme Hardship
    4. Technical Changes
    C. Costs and Benefits
II. Background and Legislative Authority
III. Response to Public Comments on the 2016 Interim Final Rule
    A. Summary of Public Comments
    B. General and Preliminary Matters
    1. General Support for the Rule
    2. Additional Comments
    C. Terminology
    D. Definitions
    1. Involuntary Servitude
    b. Reasonable Person Standard
    c. Involuntary Servitude Induced by Domestic Violence
    d. Mixed Motives
    2. Law Enforcement Agency (LEA)
    3. Law Enforcement Involvement
    4. Reasonable Request for Assistance
    5. Commercial Sex Act
    6. Severe Form of Trafficking in Persons
    E. Evidence and Burden and Standard of Proof
    1. Reasonable Person Standard
    2. Credibility of Evidence
    3. Opportunity To Respond to Adverse Information
    4. Requests for Evidence (RFE)
    F. Application
    1. Applicant Statements
    2. Interviews of Applicants
    3. Notification to the Department of Health and Human Services 
(HHS)
    4. Notification of Approval of T Nonimmigrant Status
    G. Law Enforcement Declarations
    1. Declaration Signature
    2. Withdrawn Declarations and Revoked Continued Presence (CP)
    3. Requirement To Sign Law Enforcement Declaration
    H. Bona Fide Determination (BFD)
    I. Evidence To Establish Trafficking
    J. Physical Presence
    1. Applicability of Physical Presence Requirement
    2. Passage of Time Between Trafficking and Filing the T Visa
    3. LEA Liberation and LEA Involvement
    4. Presumption of Physical Presence
    5. Continuing Presence and Nexus to Trafficking
    6. Effect of Departure or Removal
    7. Trafficking That Occurs Outside the United States, and 
Traveling Outside the United States Following Victimization
    8. Opportunity To Depart
    9. Presence for Participation in Investigative or Judicial 
Process
    10. Evidence To Establish Physical Presence
    K. Compliance With any Reasonable Request for Assistance
    1. Requirement To Comply With Reasonable Request
    2. Incompetence and Incapacity
    3. Minimum Contact With Law Enforcement
    4. Determining the Reasonableness of a Request
    5. Trauma Exception
    6. DHS Contact With Law Enforcement
    7. Age Exemption
    L. Extreme Hardship
    M. Family Members Facing a Present Danger of Retaliation
    N. Marriage of Principal After Principal Files Application for T 
Nonimmigrant Status
    O. Relationship and Age-Out Protections
    P. Travel Abroad
    Q. Extension of Status
    R. Revocation Procedures
    S. Waivers of Inadmissibility
    T. Adjustment of Status
    U. Applicants and T Nonimmigrants in Removal Proceedings or With 
Removal Orders
    1. Principal Applicants, T-1 Nonimmigrants, and Derivative 
Family Members
    2. Immigration Judges
    3. Automatic Stays of Removal
    4. Unrepresented Applicants
    5. Detained Applicants
    6. Reinstatement of Removal
    7. Issuances of Notices to Appear (NTAs)
    V. Notification to ICE of Potential Trafficking Victims
    W. Fees
    X. Restrictions on Use and Disclosure of Information Relating to 
T Nonimmigrant Status
    Y. Public Comment and Responses on Statutory and Regulatory 
Requirements
    Z. Biometrics
    AA. Trafficking Screening, Training, and Guidance
    1. Screening
    2. Training
    3. Guidance
    BB. Miscellaneous Comments
    1. Cases Involving Multiple Victims
    2. Social Security Cards
    3. Victim-Blaming
    4. Processing Times
    5. Motions To Reopen and Reconsider
    6. HHS Notification
    7. Program Integrity
    8. Annual Cap
    9. Continued Presence Adjudication
    10. Comment Period
    CC. Out of Scope Comments
IV. Statutory and Regulatory Requirements
    A. Executive Orders 12866, 13563, and 14094
    1. Summary
    2. Background and Population
    3. Updates to the Economic Analysis Since the 2016 Interim Rule, 
Pre-IFR Baseline
    4. Costs, and Benefits of the Final Rule
    5. Final Costs of the Final Rule
    B. Regulatory Flexibility Act
    C. Small Business Regulatory Enforcement Fairness Act of 1996 
(Congressional Review Act)
    D. Unfunded Mandates Reform Act of 1995
    E. Congressional Review Act
    F. Executive Order 13132 (Federalism)
    G. Executive Order 12988 (Civil Justice Reform)
    H. Executive Order 13175 (Consultation and Coordination With 
Indian Tribal Governments)
    I. Family Assessment
    J. National Environmental Policy Act

[[Page 34865]]

    K. Paperwork Reduction Act
    1. Comments on the Information Collection Changes to Form I-914 
and Related Forms and Instructions Published With the 2016 Interim 
Rule
    2. Comments on Information Collection Changes to Form I-914, 
Application for T Nonimmigrant Status, and Related Forms and 
Instructions Published With Final Rule (60 Day Notice)
    3. Changes to Form I-914, Form I-765, and Related Forms and 
Instructions Published With Final Rule

I. Executive Summary

A. Purpose of the Regulatory Action

    The T nonimmigrant status regulations--which include the 
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 4783 (Jan. 
31, 2002) (2002 interim rule). Since the publication of that interim 
rule, the public submitted comments on the regulations, and Congress 
enacted numerous pieces of related legislation. DHS published a 2016 
interim rule to respond to the public comments, clarify requirements 
based on statutory changes and its experience operating the program for 
more than 14 years, and amend provisions as required by legislation. 
Classification for Victims of Severe Forms of Trafficking in Persons; 
Eligibility for ``T'' Nonimmigrant Status, 81 FR 92266 (Dec. 19, 2016). 
In July 2021, DHS reopened the public comment period for the interim 
rule for 30 days, and subsequently extended the deadline for comments. 
This final rule adopts the changes in the 2016 interim rule, with some 
modifications. The rationale for the 2016 interim rule and the 
reasoning provided in the preamble to the 2016 interim rule remain 
valid with respect to many of those regulatory amendments, and DHS 
adopts such reasoning to support this final rule. In response to the 
public comments received on the 2016 interim rule, DHS has modified 
some provisions in the final rule. DHS has also made some technical 
changes in the final rule. The changes are summarized in the following 
section I.B. Responses to public comments, and substantive changes 
being made in response, are discussed in detail in section III.
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    \1\ Although T nonimmigrant status is known as the ``T visa'' 
colloquially, such a classification is not entirely accurate. T-1 
applicants must be physically present in the United States or at a 
port of entry on account of the trafficking in persons to be 
eligible for T-1 nonimmigrant status, so they do not obtain a ``T 
visa'' to enter the United States. T-1 nonimmigrants may seek 
derivative T nonimmigrant status for certain family members. See new 
8 CFR 214.211(a). Some of these family members may reside outside 
the United States and, if eligible, can join the T-1 nonimmigrant in 
the United States. Before family members with approved applications 
for derivative T nonimmigrant status can enter the United States, 
the family members must first undergo processing with the Department 
of State (DOS) at a U.S. Embassy or Consulate to obtain a T visa 
abroad. This is known as consular processing. USCIS will decide 
based on the application filed by the T-1 nonimmigrant whether an 
overseas family member qualifies for derivative T nonimmigrant 
status. DOS will then separately determine that family member's 
eligibility to receive a visa to enter the United States. A family 
member outside of the United States is not a derivative T 
nonimmigrant until they are granted a T-2, T-3, T-4, T-5, or T-6 
visa by the DOS and are admitted to the United States in T 
nonimmigrant status. See new 8 CFR 214.211(a).
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B. Summary of Changes Made in the Final Rule

1. Definitions
    In the final rule, DHS has updated several definitions to clarify 
them and ensure that they are consistent with those in the Trafficking 
Victims Protection Act of 2000 (TVPA), as amended. See 22 U.S.C. 7102; 
new 8 CFR 214.201. The rule strikes language from the definition of 
``involuntary servitude'' which had been derived from the United States 
v. Kozminski, 487 U.S. 931 (1988), decision. DHS has also added 
definitions of the terms ``serious harm'' and ``abuse or threatened 
abuse of the legal process.'' Additionally, DHS has added a definition 
of ``incapacitated or incompetent.'' DHS has clarified in the 
definition of law enforcement agency several additional examples of 
what may constitute such an agency. In addition, DHS has amended the 
definition for ``Law Enforcement Agency declaration.'' DHS has also 
included a new definition for the term ``law enforcement involvement.'' 
Finally, DHS has struck repetitive language from the definition of 
``reasonable request for assistance.''
2. Bona Fide Determination Process
    DHS has moved the definition of ``bona fide determination,'' (BFD) 
to define the process in the relevant provision of the regulations for 
clarity. See new 8 CFR 214.204(m), 214.205.
    DHS has also amended provisions regarding BFDs, which reflect a 
modified process. See new 8 CFR 214.204(m), 214.205, and 
274a.12(c)(40). The new streamlined process will include case review 
and background checks. Once an individual whose application has been 
deemed bona fide files a Form I-765, Application for Employment 
Authorization under new 8 CFR 274.a12(c)(40), USCIS will consider 
whether an applicant warrants a favorable exercise of discretion and 
will be granted deferred action and a BFD employment authorization 
document.\2\
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    \2\ Persons seeking or granted T nonimmigrant status pay no fee 
for Form I-765. See 8 CFR 106.3(b)(2)(viii).
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3. Evidence of Extreme Hardship
    In response to comments, DHS is clarifying the regulations to state 
that hardship to persons other than the applicant will be considered 
when determining whether an applicant would suffer the requisite 
hardship, only if the evidence specifically demonstrates that the 
applicant will suffer hardship upon removal as a result of hardship to 
a third party. New 8 CFR 214.209(c)(2).
4. Technical Changes
a. Reorganization of 8 CFR Part 214
    This rule moves the regulations for T nonimmigrant status to a 
separate subpart of 8 CFR part 214 to reduce the length and density of 
part 214 and to make it easier to locate specific provisions. In 
addition to the renumbering and redesignating of paragraphs, the rule 
has reorganized and reworded some sections to improve readability, such 
as in new sections 8 CFR 214.204(d)(1) (discussing the law enforcement 
agency (LEA) declaration) and 8 CFR 214.208(e)(1) (discussing the 
trauma exception to the general requirement of compliance with any 
reasonable law enforcement requests for assistance). The rule also 
divides overly long paragraphs into smaller provisions to improve the 
organization of the regulations.
    The Administrative Procedure Act (APA) exempts from the prior 
notice and opportunity for comment requirements, ``. . . rules of 
agency organization, procedure or practice.'' 5 U.S.C. 553(b)(A). 
Restructuring the regulations and moving them to a separate subpart 
resulted in no substantive changes to program requirements. This rule's 
changes to renumber paragraphs and improve readability affects rules of 
agency organization, procedure or practice, and those portions of the 
rule are exempt from the notice-and-comment requirements under 5 U.S.C. 
553(b)(A).
    Table 1 lists where provisions of 8 CFR 214.11 that were codified 
in the 2016 interim rule have been moved to in this final rule.

[[Page 34866]]

[GRAPHIC] [TIFF OMITTED] TR30AP24.036

b. Terminology Changes
    USCIS is making technical clarifications throughout the regulation 
in amending the use of the term ``alien'' and replacing it with 
``victim,'' ``applicant,'' ``survivor,'' or ``noncitizen'' where 
appropriate. USCIS is also updating terminology to be gender neutral 
throughout.
    Throughout the regulations, DHS has made revisions to reference 
``detection, investigation, or prosecution'' rather than just 
``investigation or prosecution'' for consistency and accuracy.
    DHS has also removed the term ``principal T nonimmigrant'' from the 
regulations and replaced it with the term ``T-1 nonimmigrant.'' The 
term ``principal T nonimmigrant'' did not appear elsewhere in the CFR, 
whereas ``T-1 nonimmigrant'' is used consistently to describe a victim 
of a severe form of trafficking in persons who has been granted T-1 
nonimmigrant status.
c. Definition of Eligible Family Member
    DHS has made a technical clarification to the definition of 
``eligible family member.'' The 2016 Interim Rule defines this term as 
a family member who may be eligible for derivative T nonimmigrant 
status based on their relationship to a noncitizen victim and, if 
required, upon a showing of a present danger or retaliation; however, 
the statute indicates that the derivative must face a present danger of 
retaliation as a result of escape from the severe form of trafficking 
or cooperation with law enforcement. INA sec. 101(a)(15)(T)(ii)(III). 
As such, DHS has made a technical revision to the regulatory text to 
comply with Congressional intent. See new 8 CFR 214.201.
d. Clarification To Address T Visa Evidentiary Standard and Standard of 
Proof
    DHS is also clarifying the evidentiary standard and standard of 
proof that apply to the adjudication of a T visa application. This rule 
retains the standard that applicants may submit any credible evidence 
relating to their T visa applications for USCIS to consider. See new 8 
CFR 214.204(l).
e. Interview Authority
    DHS is removing the interview provision at former 8 CFR 
214.11(d)(6) to avoid redundancy. This section indicated that USCIS may 
require an applicant for T nonimmigrant status to participate in a 
personal interview. USCIS is removing this provision, because USCIS 
authority to require any individual filing a benefit request to appear 
for an interview is already covered at 8 CFR 103.2(b)(9).
f. USCIS Review
    DHS has stricken ``de novo'' from 8 CFR 214.11(d)(5) and (8) 
(redesignated as 8 CFR 214.204(l)(2) and (n)) to reflect that USCIS 
conducts an initial review, not a ``de novo'' review.
g. Travel Authority
    DHS has clarified that a noncitizen granted T nonimmigrant status 
must apply for advance parole to return to the United States after 
travel abroad pursuant to section 212(d)(5) of the INA, 8 U.S.C. 
1182(d)(5). Compliance with advance parole procedures is required to 
maintain T nonimmigrant status upon return to the United States and 
remain eligible to adjust status under section 245(l) of the INA, 8 
U.S.C. 1255(l). See new 8 CFR 214.204(p), 214.211(i)(4); 8 CFR 
245.23(j).
h. Departure From the United States as a Result of Continued 
Victimization
    DHS wishes to clarify that the ``continued victimization'' criteria 
referenced at 8 CFR 214.207(b)(1) does not require that the applicant 
is currently a ``victim of a severe form of trafficking in persons.'' 
Instead, continued victimization can include ongoing victimization that 
directly results from past trafficking. For example, if an applicant 
experienced harm such as abduction, abuse, threats, or other trauma 
that resulted in continuing harm, that applicant's reentry could be a 
result of their continued victimization, even though they were not 
trafficked upon reentry. As such, the applicant may be able to satisfy 
the physical presence requirement if they establish that their reentry 
into the United States was the result of continued victimization tied 
to ongoing or past trafficking. See new 8 CFR 214.207(b)(1).

[[Page 34867]]

i. Severe Form of Trafficking in Persons
    DHS has revised the regulatory text so that references to 
``trafficking'' and ``acts of trafficking'' are consistent with the 
INA, for consistency and clarity. These changes are intended to clarify 
for applicants when ``a severe form of trafficking in persons'' applies 
to a particular eligibility requirement and when instead 
``trafficking'' or ``acts of trafficking'' apply to an eligibility 
requirement. For example, applicants must demonstrate that they have 
complied with reasonable requests for assistance in the investigation 
or prosecution of ``acts of trafficking'' or the investigation of crime 
where ``acts of trafficking'' are at least one central reason for the 
commission of the crime, pursuant to section 101(a)(15)(T)(i)(III)(aa) 
of the INA, 8 U.S.C. 1101(a)(15)(T)(i)(III)(aa), as distinct from a 
``severe form of trafficking in persons'' that applies to other 
eligibility requirements, such as section 101(a)(15)(T)(i)(I) of the 
INA, 8 U.S.C. 1101(a)(15)(T)(i)(I). See, e.g., new 8 CFR 214.201, 
214.204(c), 214.208(a) and (c) through (e), 214.209(b), 214.211(a), 
214.212(a) and (e), 214.215(b) (addressing ``acts of trafficking''); 
214.201, 214.202(a) and (e), 214.204(g), 214.206(a), 214.207(a) and 
(b), 214.208(b), 214.209(b), 214.215(a) (discussing ``severe form of 
trafficking in persons'').
j. Extreme Hardship Involving Unusual and Severe Harm
    DHS has amended previous 8 CFR 214.11(i)(1) because the previous 
citation at 8 CFR 240.58 no longer exists. See new 8 CFR 214.209(a).
k. Waiting List
    DHS has revised previous 8 CFR 214.11(j) for clarity, and 
reorganized the provision at new 8 CFR 214.210, to reflect how the 
waiting list works in conjunction with the amended bona fide 
determination process.
l. Appeal Rights and Procedures
    USCIS has clarified appeal rights and procedures at new 8 CFR 
214.213(c). See 8 CFR 103.3. USCIS has further clarified the existing 
practice that an automatic revocation cannot be appealed. See new 8 CFR 
214.213(a).
m. References to Forms
    The phrase ``form designated by USCIS'' has been replaced in 
several places with an official form name. Form numbers have also been 
removed throughout and replaced by form names.
n. Law Enforcement Endorsement
    DHS has updated references to ``Law Enforcement Endorsement'' to 
instead refer to ``Law Enforcement Declaration.'' This update more 
effectively captures the declaration process in the T visa program. In 
addition, DHS has deleted the requirement under 8 CFR 214.11(d)(3)(i) 
that a law enforcement agency (LEA) declaration must include ``the 
results of any name or database inquiries performed'' because the 
information is redundant, as USCIS conducts background checks on the 
applicant as part of its adjudication.
o. Assistance in the Investigation or Prosecution for Adjustment of 
Status
    Prior to TVPRA 2008, the INA referenced the Attorney General at INA 
section 245(l)(1)(C), 8 U.S.C. 1255(l)(1)(C), which describes the 
requirement of assisting in an investigation or prosecution of acts of 
trafficking. TVPRA 2008 amended the INA so that the Secretary of 
Homeland Security is now only required to consult with the Attorney 
General as appropriate. See INA sec. 245(l)(1)(C), 8 U.S.C. 
1255(l)(1)(C). As a result of TVPRA 2008, DHS has sole jurisdiction 
over the entire T nonimmigrant adjustment of status process, including 
the determination of whether an applicant complied with any reasonable 
requests for assistance in the investigation or prosecution of acts of 
trafficking, and DHS consults the Attorney General as it deems 
appropriate.\3\ The regulations state that the Attorney General has 
jurisdiction to determine whether an applicant received any reasonable 
request for assistance in the investigation or prosecution of acts of 
trafficking, and, if so, whether they complied with that request. See 
previous 8 CFR 245.23(d). This required applicants for adjustment of 
status to submit a document issued by the Attorney General (or their 
designee) certifying the applicant had complied with any reasonable 
requests for assistance. See previous 8 CFR 245.23(f). After TVPRA 
2008, however, an applicant was no longer required to obtain a 
certification from the Attorney General to demonstrate compliance with 
any reasonable requests in the investigation or prosecution of acts of 
trafficking, and immigration officers were no longer required to deny 
an application for lack of an Attorney General certification.\4\ 
Instead, officers were required to determine whether the applicant had 
met the statutory requirement to comply with any reasonable request for 
assistance. Therefore, consistent with DHS' longstanding practice, and 
the changes made to the INA by TVPRA 2008, DHS amends 8 CFR 245.23(d) 
and (f) in this rule to indicate that an applicant is not required to 
provide a certification letter from the Attorney General regarding 
their compliance with any reasonable request for assistance in the 
investigation or prosecution of acts of trafficking. DHS has stricken 
any reference to the Attorney General in these sections; applicants 
must establish their compliance with any reasonable request for 
assistance to the satisfaction of USCIS only.
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    \3\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of 
Homeland Security, ``William Wilberforce Trafficking Victims 
Protection Reauthorization Act of 2008: Changes to T and U 
Nonimmigrant Status and Adjustment of Status Provisions; Revisions 
to Adjudicator's Field Manual (AFM) Chapters 23.5 and 39 (AFM Update 
AD10-38)'' (2010), https://www.uscis.gov/sites/default/files/document/memos/William-Wilberforce-TVPRAct-of-2008-July-212010.pdf 
(TVPRA Memo).
    \4\ See TVPRA memo.
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C. Costs and Benefits

    As discussed further in the preamble below, this final rule adopts 
the changes from the 2016 interim final rule (IFR), with some 
modifications. The rationale for the 2016 interim rule and the 
reasoning provided in the preamble to the 2016 interim rule remain 
valid with respect to these regulatory amendments; therefore, DHS 
adopts such reasoning to support this final rule. In response to the 
public comments received on the 2016 interim rule, DHS has modified 
some provisions for this final rule. In addition, DHS has also made 
some technical changes in the final rule.
    This final rule clarifies some definitions and amends the bona fide 
determination (BFD) provisions to implement a new process. This final 
rule also clarifies evidentiary requirements for hardship and codifies 
the evidentiary standard of proof that applies to the adjudication of 
an application for T nonimmigrant status. Lastly, DHS made technical 
changes to the organization and terminology of 8 CFR part 214.
    For the 10-year period of analysis of the rule using the post-IFR 
baseline, DHS estimates the annualized costs of this rule will be 
$807,314 annualized at 3 and 7 percent. Table 1 in section IV provides 
a more detailed summary of the final rule provisions and their impacts.

II. Background and Legislative Authority

    Congress created T nonimmigrant status in the TVPA. See Victims of 
Trafficking and Violence Protection Act

[[Page 34868]]

of 2000, 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: Trafficking Victims 
Protection Reauthorization Act (TVPRA) of 2003, Public Law 108-193, 117 
Stat. 2875 (Dec. 19, 2003); Violence Against Women Act (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); Justice for Victims of Trafficking Act (JVTA), Public Law 114-
22, 129 Stat 227 (May 29, 2015). The TVPA may be found in 22 U.S.C. 
7101-7110; 22 U.S.C. 2151n, 2152d.
    The TVPA and subsequent reauthorizing legislation provide various 
means to detect and 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. T nonimmigrant status is one 
type of immigration relief available to victims of a severe form of 
trafficking in persons who assist LEAs in the investigation or 
prosecution of the perpetrators of these crimes.
    The Immigration and Nationality Act (INA) permits the Secretary of 
Homeland Security (Secretary) to grant T nonimmigrant status to 
individuals who are or were victims of a severe form of trafficking in 
persons and 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 are under 18 years of age or are unable 
to cooperate due to physical or psychological trauma), and to certain 
eligible family members of such individuals.\5\ See INA sec. 
101(a)(15)(T)(i)(I), (III), (ii), 8 U.S.C. 1101(a)(15)(T)(i)(I), (III), 
(ii). Applicants for T-1 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 to the United States, 
on account of a severe form of trafficking in persons. This includes 
being physically present on account of having been allowed to enter the 
United States to participate in investigative or judicial processes 
associated with an act or a perpetrator of trafficking. See INA sec. 
101(a)(15)(T)(i)(II), 8 U.S.C. 1101(a)(15)(T)(i)(II). In addition, an 
applicant must demonstrate that they would suffer extreme hardship 
involving unusual and severe harm if removed from the United States. 
See INA sec. 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 four years (with the 
possibility for extensions in some circumstances), receive work 
authorization, become eligible for certain Federal public benefits and 
services, and apply for derivative status for certain eligible family 
members. See INA sec. 214(o), 8 U.S.C. 1184(o); INA sec. 101(i)(2), 8 
U.S.C. 1101(i)(2); 22 U.S.C. 7105(b)(1)(A); TVPA 107(b)(1); section 431 
of the Personal Responsibility and Work Opportunity Reconciliation Act 
of 1996, as amended, 8 U.S.C. 1641(c)(4); INA sec. 101(a)(15)(T)(ii), 8 
U.S.C. 1101(a)(15)(T)(ii). T nonimmigrants who qualify may also be able 
to adjust their status and become lawful permanent residents. INA sec. 
245(l), 8 U.S.C. 1155(l).
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    \5\ The primary applicant who is the victim of trafficking may 
also be referred to as the ``principal T nonimmigrant'' or 
``principal applicant'' and receives T-1 nonimmigrant status, if 
eligible. The principal applicant may be permitted to apply for 
certain family members who are referred to as ``eligible family 
members'' or ``derivative T nonimmigrants'' and if 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 principal 
applicant.
---------------------------------------------------------------------------

III. Response to Public Comments on the 2016 Interim Final Rule

A. Summary of Public Comments

    On December 19, 2016, DHS published an interim final rule (IFR) in 
the Federal Register and received 17 public comments. 81 FR 92266 (Dec. 
19, 2016). On July 16, 2021, DHS reopened the public comment period for 
the IFR rule for 30 days to provide the public with further opportunity 
to comment on the interim final rule. 86 FR 37670 (July 16, 2021). DHS 
received multiple requests from stakeholders to extend the deadline for 
submitting public comments during the reopened public comment period. 
In response to that request, DHS extended the reopened comment period 
for an additional 30 days, to provide a total of 60 days for the public 
to submit comments. DHS received an additional 41 comments on the IFR 
during the reopened comment period. In total, between the two comment 
periods, DHS received 58 comments. DHS has reviewed all the public 
comments and addresses them in this final rule.

B. General and Preliminary Matters

    Most comments came from representatives of nonprofit legal service 
providers who provided detailed recommendations based on their 
experience advocating for and providing services to trafficking 
victims. Commenters also included members of the public and individual 
law practitioners.
1. General Support for the Rule
    Comment: Most commenters were generally in favor of the 2016 
interim rule. Several commenters supported DHS's decision to issue 
detailed regulations that reflect statutory changes since the initial 
2002 interim rule; some commenters mentioned the confusion that has 
been caused by having outdated regulations that did not reflect 
subsequent statutory changes. Some commenters expressed concern about 
the growing epidemic of human trafficking in the United States and 
globally. Commenters expressed support for the following:
     Eliminating the requirement that applicants for T 
nonimmigrant status provide three passport-sized photographs with their 
applications, which saves victims and assisting nonprofit organizations 
time and money;
     Removing the filing deadline for applicants whose 
trafficking occurred before October 28, 2000, recognizing that there 
was no statutory requirement for the deadline;
     Clarifying that if a T nonimmigrant cannot file for 
adjustment of status within the 4-year filing deadline and can show 
exceptional circumstances, they may be eligible to receive an extension 
of status and may potentially be able to adjust status to a lawful 
permanent resident;
     Updating regulatory language to reflect statutory changes 
to the categories of eligible family members and clarifying age-out 
protections for family members who are eligible at the time of filing 
but exceed the required age before USCIS adjudicates the application;
     Clarifying that T nonimmigrant applicants are exempted 
from the public charge ground of inadmissibility;
     Revising the waiver authority for grounds of 
inadmissibility during the T nonimmigrant application stage and the T 
adjustment of status stage;
     Providing additional guidance that an individual need not 
actually perform labor, services, or commercial sex acts to meet the 
definition of a ``victim of a severe form of trafficking in persons'';
     Clarifying the ``any credible evidence'' standard;

[[Page 34869]]

     Referencing the confidentiality provisions that apply to 
applicants for T nonimmigrant status under 8 U.S.C. 1367(a)(2) and (b);
     Exempting applicants who, due to trauma, are unable to 
comply with any reasonable request by a law enforcement agency;
     Clarifying that presence in the Commonwealth of the 
Northern Mariana Islands after being granted T nonimmigrant status 
qualifies towards meeting the requisite physical presence requirement 
for adjustment of status;
     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;
     Expanding the definition of ``Law Enforcement Agency'' to 
include State and local agencies, as well as those that detect and 
investigate trafficking;
     Removing the requirement that an applicant establish they 
had no ``opportunity to depart'' the United States and clarifying the 
circumstances in which an applicant who has left the United States can 
establish physical presence in the United States on account of 
trafficking;
     Clarifying that ``involuntary servitude'' encompasses 
``the use of psychological coercion''; and
     Removing the extreme hardship requirement for overseas 
derivative family members.
    Response: DHS acknowledges and appreciates commenters' support of 
the rule. DHS agrees with the substance of these comments and believes 
these changes provide greater clarity and further align the T visa 
program with its statutory purpose.
2. Additional Comments
    Commenters also requested that DHS modify certain provisions in the 
2016 interim rule. Although there was some variation in the proposed 
changes, there was also significant overlap in their comments. DHS 
considered the comments received and all other material contained in 
the docket in preparing this final rule. This final rule does not 
address comments beyond the scope of the 2016 interim rule, including, 
for instance, those that express general opinions, those that include 
personally identifying information, or those that request that USCIS 
establish a regular timeline for regulatory updates. All comments and 
other docket material are available for viewing at the Federal Docket 
Management System (FDMS) at www.regulations.gov and searching under 
Docket Number USCIS-2011-0010.
    Many commenters wrote about several subjects. Comments are 
summarized for clarity and combined with other comments on the same 
subject matter. The substantive comments received on the 2016 interim 
rule and DHS responses are discussed in depth below.

C. Terminology

    Comment: Several commenters requested terminology changes to the 
regulation, including replacing ``victim'' with ``survivor,'' using 
gender neutral language throughout, and replacing ``alien'' with a more 
appropriate term.
    Response: DHS agrees with these recommendations and has made 
technical clarifications throughout the regulation in amending the use 
of the term ``alien'' and replacing it with ``victim,'' ``applicant,'' 
``survivor,'' or ``noncitizen'' where appropriate, while recognizing 
that ``alien'' is the statutorily-defined term used by Congress in INA 
sec. 101(a)(15)(T), 8 U.S.C. 1101(a)(15)(T) and INA sec. 214(o), 8 
U.S.C. 1184(o).\6\ DHS has also updated terminology to be gender 
neutral throughout.
---------------------------------------------------------------------------

    \6\ See INA sec. 101(a)(3), 8 U.S.C. 1101(a)(3) (The term 
``alien'' means any person not a citizen or national of the United 
States).
---------------------------------------------------------------------------

D. Definitions

    DHS added U.S. Code citations to the regulations that will be 
afforded due regard throughout subpart B of 8 CFR part 214 based on 
amendments to subsequent reauthorizing legislation.
1. Involuntary Servitude
    Comment: Commenters wrote that they supported DHS removing the 
citation to United States v. Kozminski, 487 U.S. 931 (1988), from the 
definition of ``involuntary servitude'' and made several suggestions 
for further clarifying the definition. Several commenters requested 
that DHS delete language derived from the Kozminski decision to avoid 
confusion and promote consistency with the statutory definition of 
``involuntary servitude'' at 22 U.S.C. 7102, which codifies section 103 
of the TVPA and subsequent amendments.
    Response: DHS agrees to delete the language derived from the 
Kozminski decision from the rule's involuntary servitude definition 
that is inconsistent with the TVPA's definition at 22 U.S.C. 7102(8). 
As stated in the preamble to the 2002 interim rule, Congress intended 
to expand the definition of involuntary servitude that was used in 
Kozminski by broadening the types of criminal conduct that could be 
labeled ``involuntary servitude.'' 67 FR 4786.
a. Abuse of the Legal System and Serious Harm
    Comment: One commenter wrote that DHS should acknowledge that 
traffickers may specifically traffic individuals to force them to 
commit crimes for the benefit of the trafficker, force victims to 
commit crimes as a control mechanism, and target individuals with 
criminal histories for trafficking due to that person's reluctance or 
inability to seek redress from law enforcement agencies.
    Response: DHS acknowledges that traffickers target individuals for 
these reasons, but does not feel it appropriate or necessary to include 
references to such practices in the regulations.
    Comment: Multiple commenters proposed that the definitions section 
of the regulation adopt the current terms of ``abuse or threatened 
abuse of the legal process'' and ``serious harm'' from the criminal 
provisions related to ``forced labor'' in 18 U.S.C. 1589 and ``sex 
trafficking'' in 18 U.S.C. 1591, respectively. The commenters stated 
that these additional definitions would clarify for attorneys, LEAs, 
and advocates that ``serious harm'' is not based on subjective severity 
but broadly encompasses the surrounding circumstances, including 
financial and reputational harm. They commented further that many 
practitioners do not realize that ``abuse or threatened abuse of legal 
process'' can include administrative or civil processes and that the 
inclusion of these two definitions would be consistent with 
Congressional intent regarding how these terms should be interpreted in 
the trafficking context.
    Response: DHS agrees with these proposed changes and the 
commenters' stated rationale. As stated in the preamble to the 2002 
interim rule on T nonimmigrant status, the TVPA defines ``a severe form 
of trafficking in persons'' to include ``involuntary servitude.'' For 
purposes of T nonimmigrant status, this inclusion and other relevant 
definitions from section 103 of the TVPA, as amended, 22 U.S.C. 7102, 
apply. See 67 FR 4783, 4786. In defining ``severe form of trafficking 
in persons,'' the TVPA ``builds upon the Constitutional prohibition on 
slavery, on the existing criminal law provisions on slavery and peonage 
(Chapter 77 of title 18, U.S. Code, sections 1581 et seq.), on the case 
law interpreting the Constitution and these statutes (specifically 
United States v. Kozminski, 487 U.S. 931, 952 (1988)), and on the new 
criminal law prohibitions contained in the TVPA.''

[[Page 34870]]

Id. Furthermore, ``[t]he statutory definition of involuntary servitude 
[in the TVPA] reflects the new Federal crime of `forced labor' 
contained in section 103(5) of the TVPA, and expands the definition of 
involuntary servitude contained in Kozminski.'' Id. Thus, DHS agrees 
that it is appropriate to draw from the definition of ``serious harm'' 
in the statute that criminalizes forced labor, 18 U.S.C. 1589. 
Accordingly, DHS incorporates these definitions in new 8 CFR 214.201.
b. Reasonable Person Standard
    Comment: One commenter requested that the Department state within 
the involuntary servitude definition that the reasonable person 
standard applies to those with mental, cognitive, and physical 
disabilities or those who have been trafficked by a family member.
    Response: DHS acknowledges that these factors are considered in 
individual cases but declines to adopt this language within the 
definition of involuntary servitude, as DHS does not feel it is 
necessary or prudent to address every possible scenario within the 
regulations and that such factors are best addressed in sub-regulatory 
guidance.\7\
---------------------------------------------------------------------------

    \7\ For example, see U.S. Citizenship and Immigr. Servs., U.S. 
Dep't of Homeland Security, ``Volume 3, Humanitarian Protection and 
Parole, Part B, Victims of Trafficking, Chapter 2, Eligibility 
Requirements, Section B, Victim of Severe Form of Trafficking in 
Persons, Subsection 3, Definition of Coercion,'' https://www.uscis.gov/policy-manual/volume-3-part-b-chapter-2 (discussing 
analyzing coercion using a ``reasonable person'' standard) (last 
updated Oct. 20, 2021). As discussed elsewhere, DHS also applies a 
victim-centered approach in its adjudications, which takes into 
consideration all relevant factors in the case, including a victim's 
individual circumstances. See, e.g., U.S. Citizenship and Immigr. 
Servs., U.S. Dep't of Homeland Security, ``Volume 3, Humanitarian 
Protection and Parole, Part B, Victims of Trafficking, Chapter 7, 
Adjudication, Section A, Victim-Centered Approach,'' https://www.uscis.gov/policy-manual/volume-3-part-b-chapter-7 (last updated 
Oct. 20, 2021).
---------------------------------------------------------------------------

c. Involuntary Servitude Induced by Domestic Violence
    Comment: One commenter requested that the Department codify within 
the definition of involuntary servitude that the trafficker could be 
the victim's ``paramour or relative.'' Other commenters stated that 
USCIS inaccurately characterizes domestic relationships and presumes 
that the presence of domestic violence negates the possibility of 
trafficking.
    Response: DHS acknowledges that trafficking can occur alongside 
intimate partner abuse, and involuntary servitude and domestic violence 
may coexist in some situations; however, DHS declines the commenter's 
suggestion. DHS believes that the regulations are not intended to 
explicitly capture every possible situation, and that this degree of 
specificity would not be helpful, and may inadvertently preclude 
scenarios that are not explicitly described in the regulation.
    In determining whether threats, abuse, or violence create a 
condition of involuntary servitude that constitutes a severe form of 
trafficking in persons, DHS evaluates a number of factors, including 
but not limited to whether the situation involves compelled or coerced 
labor or services and is induced by force, fraud, or coercion. Although 
domestic violence and trafficking may intersect, not all work that 
occurs as the result of domestic violence constitutes involuntary 
servitude. To distinguish between domestic violence and labor 
trafficking resulting from domestic violence, an individual must 
demonstrate that the perpetrator's motive is or was to subject them to 
involuntary servitude.
d. Mixed Motives
    Commenter: Several commenters wrote that DHS has incorrectly 
suggested that a trafficker's sole purpose must be involuntary 
servitude, and that a trafficker's intent cannot also be extortion or 
for monetary gain. They request DHS clarify that an applicant may meet 
the definition of a severe form of trafficking in persons if at least 
one purpose of the perpetrator's force, fraud, or coercion is to 
subject the person to involuntary servitude, peonage, debt bondage, 
slavery, or a commercial sex act. Commenters also request that DHS 
specify in the preamble of the final rule that a severe form of 
trafficking in persons may occur during smuggling even if the smugglers 
also have the purpose of subjecting the victim or their families to 
other crimes such as extortion, if they also have the purpose of 
subjecting them to, inter alia, involuntary servitude or commercial 
sex.
    Response: DHS agrees that a trafficker may simultaneously have 
multiple motivations, including a desire to subject the victim to 
involuntary servitude and a desire for monetary gain through extortion. 
DHS acknowledges, as commenters note, that human trafficking rarely 
occurs in a vacuum. In the process of exerting force, fraud, and/or 
coercion on their victims, perpetrators may commit other crimes during 
the scheme to initiate and maintain control over the victim, including 
false imprisonment, assault, sexual assault, domestic violence, and 
extortion.
    A perpetrator's motivations can be multifaceted. For example, 
smugglers who intend to extort an individual during a smuggling 
arrangement may also intend to compel forced labor or services that 
place the person into a condition of servitude, even where the forced 
labor or services end upon completion of the smuggling arrangement. 
Nonetheless, DHS recognizes that not all smuggling arrangements can or 
will qualify as a severe form of trafficking in persons, particularly 
where smugglers force a person to perform an act or multiple acts 
outside of a condition of servitude during a smuggling operation. For 
example, a person may be forced to perform certain labor during a 
smuggling arrangement to facilitate the smuggling operation or avoid 
detection at the border, which would not qualify as involuntary 
servitude and therefore would not constitute trafficking or a severe 
form of trafficking in persons. In addition, there may be situations 
where an individual is forced to perform labor for another purpose, and 
not for the purpose of involuntary servitude, peonage, debt bondage, or 
slavery. As with any T visa application, DHS considers all the evidence 
on a case-by-case basis before making a final determination on an 
application.
    Although DHS agrees with the commenter, no changes have been made 
to the regulatory text in response to this comment given DHS' 
consideration of these factors when evaluating evidence in cases 
involving smuggling, as detailed in existing USCIS policy guidance.\8\
---------------------------------------------------------------------------

    \8\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of 
Homeland Security, ``Volume 3, Humanitarian Protection and Parole, 
Part B, Victims of Trafficking, Chapter 2, Eligibility Requirements, 
Section B, Victim of Severe Form of Trafficking in Persons, 
Subsection 7, Difference Between Trafficking and Smuggling,'' 
https://www.uscis.gov/policy-manual/volume-3-part-b-chapter-2 (last 
updated Oct. 20, 2021).
---------------------------------------------------------------------------

2. Law Enforcement Agency (LEA)
    Comment: One commenter suggested using the term ``law enforcement 
agency'' (LEA) consistently throughout the regulation to provide 
clarity.
    Response: DHS agrees with this comment and has amended the 
regulation to use the term ``law enforcement agency'' consistently 
throughout, rather than ``law enforcement'' or ``law enforcement 
officer.''
    Comment: Multiple commenters expressed support for DHS expanding 
the definition of an LEA. Some commenters stated support for the rule's 
clarification that LEAs can provide

[[Page 34871]]

Form I-914, Supplement B, Declaration of Law Enforcement Officer for 
Victim of Trafficking in Persons,\9\ even when there is no formal 
investigation or prosecution. Several commenters requested that the 
rule further expand the LEA definition to include additional agencies, 
which would help inform victims of their reporting options and identify 
similar local and state counterpart agencies that would meet the LEA 
definition. Commenters wrote that employees of some Federal agencies 
have expressed confusion over their certification authority because 
they are explicitly designated as certifying agencies in the 
regulations for U nonimmigrant status but not in this regulation. See 8 
CFR 214.14(a). Several commenters also requested DHS add tribal 
authorities to the list of authorized LEAs.
---------------------------------------------------------------------------

    \9\ The title of the Form I-914, Supplement B, is being changed 
in this rule to ``Declaration for Trafficking Victim.''
---------------------------------------------------------------------------

    Response: Although the list of agencies included is not exhaustive, 
DHS agrees that expanding the list will provide clarity to victims, 
stakeholders, and the LEAs themselves, and has updated the definition 
accordingly. DHS has also amended the definition to include tribal 
authorities. Including a more expansive list will assist certifiers and 
will be an operational efficiency, as adjudicators will not need to 
evaluate in each case whether a specific agency meets the definition of 
an LEA.
3. Law Enforcement Involvement
    Comment: DHS received comments related to the term ``law 
enforcement involvement,'' which is a concept used to analyze whether 
an applicant is physically present in the United States on account of 
trafficking (``physical presence''). Commenters requested additional 
clarification regarding the physical presence requirement, discussed in 
further detail in section J, below.
    Response: DHS has defined ``law enforcement involvement'' under new 
8 CFR 214.207(c)(4) to mean LEA action beyond simply receiving the 
applicant's reporting of victimization, to include the LEA interviewing 
the applicant, liberating the applicant from their trafficking, or 
otherwise becoming involved in detecting, investigating, or prosecuting 
the acts of trafficking. Liberation of an applicant from their 
trafficking will suffice to establish law enforcement involvement where 
the record indicates that the LEA detected the applicant's trafficking 
as part of this process. This definition will provide clarity to 
adjudicators and stakeholders as to the extent of involvement required 
for physical presence under new 8 CFR 214.207(c)(4).
4. Reasonable Request for Assistance
    Although DHS did not specifically receive comments on this topic, 
as a technical edit DHS has removed the term ``reasonable'' from the 
definition of the term ``reasonable request for assistance,'' because 
the initial inquiry for DHS is to determine whether a request was made. 
After the threshold determination that a request was made by the LEA, 
the reasonableness of that request is analyzed. Accordingly, the 
reasonableness is assessed using the list of factors at new 8 CFR 
214.208(c) (formerly 8 CFR 214.11(h)(2)). DHS retained ``reasonable 
request for assistance'' in other sections to reflect this analysis. 
DHS removed the paragraph at 8 CFR 214.11(a) describing the factors to 
consider the reasonableness of a request, because this language was 
duplicative of the language contained at 8 CFR 214.11(h)(2) 
(redesignated as 8 CFR 214.208(c)). Several revisions were made to the 
language at 8 CFR 214.208(c), which are discussed further below.
5. Commercial Sex Act
    Comment: Commenters requested DHS interpret the term ``commercial 
sex act'' broadly, beyond what the commenters understood the current 
definition of ``anything of value'' may encompass, to avoid confusion 
and maintain consistency with the statute and legal precedent.
    Response: DHS acknowledges that the term ``anything of value'' has 
been interpreted very broadly and encompasses things other than 
monetary or financial gain. ``Anything of value'' may include a range 
of activity that does not always have an exact monetary value attached 
to it, including but not limited to safety, protection, housing, 
immigration status, work authorization, or continued employment. Given 
Congressional intent and the significant precedent interpreting the 
term broadly, DHS has determined that it is not necessary to 
specifically reflect this range of activity in the regulatory text.
6. Severe Form of Trafficking in Persons
    Comment: One commenter wrote that DHS should clarify that attempted 
trafficking may constitute a severe form of trafficking in persons by 
adding the following language to the definition of ``severe form of 
trafficking in persons'': ``This definition does not require a victim 
to have actually performed labor, services, or a commercial sex act.''
    Response: DHS agrees that it is not necessary for the victim to 
actually perform the labor or commercial sex act(s) to be eligible for 
T nonimmigrant status. For example, a victim may be recruited through 
force, fraud, or coercion for the purpose of performing labor or 
services but be rescued or have escaped before performing any labor or 
services; however, DHS declines to adopt the commenter's suggestion to 
state this directly in the definition of a severe form of trafficking 
in persons, as the fact that attempted trafficking may qualify as 
trafficking is already clarified at 8 CFR 214.206(a) (formerly 8 CFR 
214.11(f)).

E. Evidence and Burden and Standard of Proof

    USCIS has historically considered ``any credible evidence'' when 
evaluating T visa applications. T nonimmigrant applicants are 
instructed to submit any credible, relevant evidence to establish that 
they have been a victim of a severe form of trafficking in persons, and 
that they have complied with any reasonable request for assistance from 
law enforcement. To this end, DHS has included new language in 8 CFR 
214.204(f) indicating that all evidence demonstrating cooperation with 
law enforcement will be considered under the ``any credible evidence'' 
standard, for consistency with the remainder of the rule, which states 
that applicants may submit any credible evidence relating to their T 
applications for USCIS to consider. See new 8 CFR 214.204(l).
    The ``preponderance of the evidence'' standard of proof is distinct 
from the evidentiary requirements and standard set by regulation. 
Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010). USCIS has historically 
applied a ``preponderance of the evidence'' standard when determining 
whether the T applicant has established eligibility and has included 
that standard at new 8 CFR 214.204(l). To meet this standard, the 
applicant must prove that facts included in their claim are ``more 
likely than not'' to be true. Id. at 369. To determine whether an 
applicant has met their burden under the ``preponderance of evidence'' 
standard, DHS considers not only the quantity, but also the quality 
(including relevance, probative value, and credibility) of the 
evidence. Id. at 376.
    This standard of proof should not be confused with the burden of 
proof. The burden of proving eligibility for the

[[Page 34872]]

benefit sought remains entirely with the applicant. Id. at 375.
1. Reasonable Person Standard
    Comment: One commenter requested DHS acknowledge in the preamble or 
regulation that individuals with cognitive, mental, and physical 
impairments are at greater risk for trafficking and face greater 
barriers to escape trafficking. The commenter stated that this should 
be acknowledged so that whenever a reasonableness standard is used, it 
should be interpreted as a reasonable person with the cognitive, 
mental, and physical impairments of the specific applicant.
    Response: DHS acknowledges that individuals with impairments are at 
greater risk for exploitation. DHS does not believe that this is 
necessary or appropriate to include in the regulation. DHS considers 
all relevant evidence in adjudicating each case, including the 
circumstances and any vulnerabilities of an individual applicant when 
determining reasonableness.\10\ Despite the existence of certain 
vulnerabilities, however, each applicant retains the burden of proof to 
establish eligibility by a preponderance of the evidence.
---------------------------------------------------------------------------

    \10\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of 
Homeland Security, ``Volume 3, Humanitarian Protection and Parole, 
Part B, Victims of Trafficking, Chapter 3, Documentation and 
Evidence for Principal Applicants,'' https://www.uscis.gov/policy-manual/volume-3-part-b-chapter-3 (discussing ``any credible 
evidence'' and the nature of victimization) (last updated Oct. 20, 
2021).
---------------------------------------------------------------------------

2. Credibility of Evidence
    Comment: Commenters suggested that DHS amend provisions regarding 
initial evidence at 8 CFR 214.11(d)(2) and (3) (redesignated here as 8 
CFR 214.204(c) and (e)) to state that a victim's statement alone may 
prove victimization.
    Response: DHS declines to amend 8 CFR 214.11(d)(2) and (3) 
(redesignated here as 8 CFR 214.204(c) and (e)) to explicitly state 
that a victim's statement alone may prove victimization. While DHS may 
determine, based on the facts and circumstances of a particular case, 
that a personal statement alone may be sufficient to prove 
victimization, in such a scenario, the victim's statement would have to 
be sufficiently detailed, plausible, and consistent in order to satisfy 
evidentiary requirements. With all T visa applications, DHS makes an 
individualized determination of whether trafficking has been 
established based on the evidence in each particular case. DHS notes 
that it has revised the requirements for a victim's personal statement 
included in the list of evidence in redesignated 8 CFR 214.204(c) 
(Initial evidence). These additions are intended to clarify what is 
expected to be included in a victim's personal statement to establish 
eligibility and will reduce barriers for victims of trafficking. The 
revisions in Sec.  214.204(c)(1) are intended to align with 
longstanding USCIS policy guidance and practice, and are consistent 
with the program's evidentiary standards.
    Comment: One commenter requested DHS clarify that evidence is not 
rendered less credible because of the amount of time that has elapsed 
between an applicant's eligibility for T nonimmigrant status and when 
they filed their application. The commenter also requested DHS clarify 
that evidence, including personal statements and psychiatric 
evaluations, is not less credible because it was generated in response 
to a Request for Evidence.
    Response: DHS acknowledges there may be legitimate reasons why 
significant time elapses between an applicant's trafficking and when 
they file for T nonimmigrant status. DHS also acknowledges that 
individuals produce evidence that was not initially submitted with 
their application in response to Requests for Evidence (RFEs) for 
various reasons. DHS emphasizes that any credible evidence will be 
evaluated in determining an applicant's eligibility but declines to 
include this level of specificity within the regulation. DHS 
acknowledges that due to the nature of victimization, victims may be 
unable to provide information or documentation that would otherwise be 
available to establish eligibility. USCIS instructs adjudicators to be 
mindful of the ways trauma may impact victims, including their 
recollection of traumatic experiences, which may shift over time.\11\
---------------------------------------------------------------------------

    \11\ As of the time of the publication of this regulation, 
further policy guidance describing USCIS' interpretation of the T 
nonimmigrant regulation can be found in the USCIS Policy Manual. See 
U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland 
Security, ``Volume 3, Humanitarian Protection and Parole, Part B, 
Victims of Trafficking,'' https://www.uscis.gov/policy-manual/volume-3-part-b (last updated Oct. 20, 2021).
---------------------------------------------------------------------------

3. Opportunity To Respond to Adverse Information
    Comment: Multiple commenters discussed RFEs \12\ that require 
applicants to explain inconsistencies identified by adjudicators in the 
applicant's administrative record to which the applicant is not privy. 
The commenters stated that the inconsistent evidence typically is found 
within records of other agencies and that attorneys often cannot obtain 
this information in a timely manner through requests under the Freedom 
of Information Act (FOIA), 5 U.S.C. 552, as amended. The commenters 
also wrote that advocates have reported that U.S. Customs and Border 
Protection (CBP) interviews were conducted without the use of trauma-
informed techniques and did not lead to accurate identification of 
trafficking victims. The commenters wrote that statements taken during 
these interviews can later appear to be inconsistent statements. The 
commenters stated that the full content of the CBP interviews is not 
released in response to a FOIA request and that the applicant is not 
able to correct the inconsistent statements.
---------------------------------------------------------------------------

    \12\ 8 CFR 103.2(b)(8)(ii) (``If all required initial evidence 
is not submitted with the benefit request or does not demonstrate 
eligibility, USCIS in its discretion may deny the benefit request 
for lack of initial evidence or for ineligibility or request that 
the missing initial evidence be submitted within a specified period 
of time as determined by USCIS.'').
---------------------------------------------------------------------------

    The commenters requested that DHS change the regulation to state 
that DHS will consider the totality of the evidence submitted along 
with the administrative record in evaluating the T visa application, 
and that if information contained in the administrative record could 
result in an unfavorable determination, the applicant must be given a 
copy of the information and must be provided an opportunity to 
meaningfully respond to such adverse evidence.
    Response: DHS agrees that all evidence should be assessed in its 
totality. DHS also agrees that it is important for applicants and their 
advocates to understand derogatory information on which the decision 
will be based; however, other regulatory provisions currently address 
this issue. Specifically, under 8 CFR 103.2(b)(16)(i), when a decision 
will be adverse and is based on derogatory information ``of which the 
applicant or petitioner is unaware, [they] shall be advised of this 
fact and offered an opportunity to rebut the information and present 
information in [their] own behalf before the decision is rendered.'' 
Accordingly, when there is derogatory information of which the 
applicant is unaware and upon which an adverse decision will be based, 
USCIS will comply with existing laws and regulations in advising an 
applicant of the derogatory information and offer them an opportunity 
to rebut such information through an RFE, Notice of Intent to Deny, or 
other formal notice under 8 CFR 103.2(b)(8)(iii), (b)(16)(i) and 
214.205(a)(1), except as otherwise provided in 8 CFR 103.2(b)(16).

[[Page 34873]]

4. Requests for Evidence (RFE)
    Comment: Some commenters expressed concern about a trend of 
increasing RFEs from USCIS. They indicate that the RFEs do not indicate 
what evidence is lacking, are boilerplate, and create unnecessary work 
for practitioners and anxiety for survivors. The commenters state that 
issuance of RFEs has increased processing times, leaving survivors 
vulnerable. Finally, the commenters state that these RFEs have resulted 
in unprecedented denial rates.
    Response: DHS acknowledges the concerns stakeholders are raising 
regarding RFE trends in the program. USCIS strives to apply a victim-
centered, trauma-informed approach in each adjudication while also 
ensuring that the statutory requirements for T nonimmigrant status are 
met. In addition, USCIS has recently issued significant guidance in the 
Policy Manual aimed at clarifying evidentiary requirements for both 
applicants and adjudicators and reducing the need for RFEs.\13\ Along 
with these updates, USCIS included training to adjudicators on the 
updates. Adjudicators also receive ongoing training on this and other 
issues. In addition, USCIS reviews trends in the program and revises 
any guidance if necessary. For example, if USCIS notices patterns in 
inquiries or questions asked at stakeholder engagements, it prompts 
review and potential revision of internal procedures.
---------------------------------------------------------------------------

    \13\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland 
Security, ``Volume 3, Humanitarian Protection and Parole, Part B, 
Victims of Trafficking, Chapter 3, Documentation and Evidence for 
Principal Applicants,'' https://www.uscis.gov/policy-manual/volume-3-part-b-chapter-3 (last updated Oct. 20, 2021).
---------------------------------------------------------------------------

F. Application

1. Applicant Statements
    Comment: One commenter proposed that 8 CFR 214.11(d)(2)(i) 
(redesignated here as 8 CFR 214.204(c)(1)), which requires applicants 
to provide a written statement describing their victimization, include 
an exemption for victims who are minors and victims who invoke the 
trauma exception from the requirement to comply with reasonable LEA 
requests. They wrote that DHS could determine on a case-by-case basis 
whether to waive the requirement of a signed statement. They noted that 
preparing a statement can re-traumatize victims, even when the victim 
is assisted by trauma-informed service providers. The commenter stated 
that the statement may not be necessary when the victimization is 
apparent from other evidence.
    Response: DHS understands that applicants could be re-traumatized 
by retelling their experience of victimization. Nevertheless, the 
information provided in the victim's personal statement is very 
important for USCIS. It allows USCIS to fully understand the facts of 
the case from the victim's perspective and helps USCIS determine 
whether the eligibility requirements are met. In addition, it would not 
be efficient and would cause unnecessary processing delays for USCIS to 
determine on a case-by-case basis whether a statement was necessary 
and, when necessary, request one after reviewing the initial filing. 
Therefore, DHS maintains the requirement that applicants provide a 
written statement describing their victimization in this final rule. 8 
CFR 214.204(c)(1).
2. Interviews of Applicants
    Comment: Commenters suggested that 8 CFR 214.11(d)(6) explicitly 
state that interviews of applicants for T nonimmigrant status are not 
required, and that DHS could request an interview. They asserted that 
this change would encourage victims who have faced high levels of 
trauma to come forward to apply for immigration relief.
    Response: DHS is sympathetic to the issues victims face and applies 
a victim-centered and trauma-informed approach but declines to adopt 
this recommendation. DHS still reserves the discretion to require an 
interview for all immigration benefits, including applicants for T 
nonimmigrant status, as it deems necessary. In such circumstances, 
interviews can be an important method of obtaining further information 
when determining eligibility for T nonimmigrant status. As discussed 
above, DHS has removed the interview provision at 8 CFR 214.11(d)(6) to 
avoid redundancy with 8 CFR 103.2(b)(9).
3. Notification to the Department of Health and Human Services (HHS)
    Comment: One commenter wrote to welcome the addition of a provision 
indicating that upon receiving an application for T nonimmigrant status 
from a minor under the age of 18, USCIS will notify HHS to facilitate 
interim assistance. Multiple commenters discussed the automatic nature 
of USCIS's notification to HHS upon receiving an application for T 
nonimmigrant status from a minor. See 8 CFR 214.11(d)(l)(iii) 
(redesignated here as 8 CFR 214.204(b)(4)). These commenters wrote 
that, in some instances, a referral to HHS can result in premature 
termination of some State-funded benefits that may be more 
comprehensive than the Federal interim assistance obtained through HHS. 
The commenters requested that the rule be amended to include an 
exception to the provision mandating automatic notification of HHS upon 
receiving an application for T nonimmigrant status from a minor.
    Response: DHS understands the commenters' concerns and appreciates 
why minor applicants may want to access more expansive State-funded 
benefits. DHS is unable to change the regulations in response to these 
concerns, however, because TVPRA 2008 section 212(a)(2), 22 U.S.C. 
7105(b)(1)(H), requires that DHS notify HHS no later than 24 hours 
after discovering that a person who is under 18 years of age may be a 
victim of a severe form of trafficking in persons.
4. Notification of Approval of T Nonimmigrant Status
    The rule at 8 CFR 214.11(d)(9) (redesignated as 8 CFR 214.204(o)) 
states that upon approving an application for T-1 nonimmigrant status, 
USCIS may notify others ``as it determines appropriate, including any 
LEA providing an LEA endorsement and the HHS Office of Refugee 
Resettlement, consistent with 8 U.S.C. 1367.''
    Comment: Commenters requested that DHS clarify in the rule which 
agencies or bodies that it considers appropriate to receive information 
about applicants for T nonimmigrant status or to limit the language to 
the entities listed in the rule.
    Response: DHS has maintained the current broader language because 
it provides USCIS and applicants with more flexibility in implementing 
these provisions than an exhaustive list would. USCIS may identify 
other entities that are appropriate to receive this information and 
instances in which the notification would be beneficial to the T-1 
nonimmigrant and/or an LEA and its efforts to combat trafficking. The 
final rule continues to require that the disclosure of any information 
must be consistent with the restrictions on information sharing in 8 
U.S.C. 1367. USCIS has issued guidance and training to those who 
adjudicate applications for T nonimmigrant status to ensure there is no 
inappropriate sharing of applicant information, and to ensure any 
information sharing action is consistent with 8 U.S.C. 1367.

G. Law Enforcement Declarations

    As noted in new 8 CFR 214.204(e), applicants may wish to submit 
evidence

[[Page 34874]]

from LEAs, including an LEA declaration, to help establish their 
eligibility. Although an LEA declaration is an optional form of 
evidence and does not have any special evidentiary weight, it may 
support a T nonimmigrant application by providing detailed, relevant 
information about the applicant's victimization and compliance with 
reasonable requests for assistance. DHS received several comments on 
LEA declarations, discussed below.
1. Declaration Signature
    Comment: One commenter supported the clarification that a formal 
investigation or prosecution is not required for an LEA to complete the 
declaration, and stated that the requirement that a law enforcement 
declaration be signed by a supervising official may add an unnecessary 
step to this more flexible approach.
    Response: DHS declines to adopt this recommendation. First, the Law 
Enforcement Declaration is an optional form of evidence. Second, 
maintaining the status quo in requiring a supervisor's signature adds a 
level of review to DHS's flexible approach, which acknowledges that 
whether an investigation or prosecution occurs is outside of a victim's 
control.
2. Withdrawn Declarations and Revoked Continued Presence (CP)
    DHS has updated terminology at new 8 CFR 214.204(h). DHS has 
replaced the term ``revocation'' relating to law enforcement 
declarations with ``withdrawal'' for accuracy and to avoid any 
confusion that status is being revoked.
a. Withdrawn Declarations
    Comment: Commenters requested that DHS delete the language in 8 CFR 
214.11(d)(3)(ii) (redesignated here as 8 CFR 214.204(h)) that provides 
that disavowed or withdrawn LEA declarations will no longer be 
considered evidence. Commenters suggested that rather than leaving it 
to the discretion of the LEA to provide a written explanation of its 
reasons for disavowing or withdrawing the declaration, the LEA should 
be required to do so. Commenters stated that an application should not 
be rejected based solely on one factor or one piece of evidence. They 
wrote that USCIS must provide a T nonimmigrant the opportunity to 
review and respond to the documentation from the LEA. Commenters also 
suggested adding language to 8 CFR 214.11(d)(3)(ii) (redesignated here 
as 8 CFR 214.204(h)) and 8 CFR 214.11(m)(2)(iv) (redesignated here as 8 
CFR 214.213(b)(4)) to state that before revoking T nonimmigrant status 
due to a revocation or disavowal of an LEA declaration, USCIS would 
review the application and reassess the applicant's eligibility for T-1 
nonimmigrant status in light of the LEA's explanation for the 
revocation, and consider all other evidence provided by the applicant 
under the ``any credible evidence'' standard. Finally, they stated that 
if USCIS determines that the application no longer meets the 
requirements, USCIS should issue a Notice of Intent to Revoke or a 
Request for Evidence.
    Response: The rule at 8 CFR 214.213(b)(4) provides that USCIS may 
revoke T nonimmigrant status based on withdrawal by the LEA, but does 
not require USCIS to automatically revoke T nonimmigrant status upon a 
disavowal or withdrawal of the Supplement B. DHS recognizes that a 
Supplement B may be withdrawn or disavowed for reasons unrelated to the 
applicant's cooperation with the LEA's reasonable request for 
assistance. For example, an LEA may receive additional information 
indicating the initial Supplement B was issued in error. The law 
enforcement declaration is one piece of evidence that USCIS considers 
in determining whether an applicant meets the eligibility requirements 
for T nonimmigrant status based on the totality of the evidence. See, 
e.g., new 8 CFR 214.204(c) and (l). Furthermore, 8 CFR 214.213(b)(4) 
indicates that the LEA must provide an explanation for any withdrawal 
or disavowal for it to serve as the basis for revocation. Therefore, 
DHS clarifies in this rule that a disavowed or withdrawn Supplement B 
will not be completely disregarded. After withdrawal or disavowal, the 
LEA declaration will generally no longer be considered as evidence of 
the applicant's compliance with requests for assistance in the LEA's 
detection, investigation, or prosecution; however, a disavowed or 
withdrawn Supplement B may be considered for other eligibility 
requirements (such as evidence of victimization) along with any other 
credible evidence relevant to the application. See new 8 CFR 214.204(f) 
and (h). DHS will determine whether the disavowed or withdrawn 
Supplement B will be considered as evidence of compliance by assessing 
the reasons for the disavowal or withdrawal. Once the Supplement B is 
disavowed or withdrawn, DHS will determine the reason for the disavowal 
or withdrawal and then determine what purpose, if any, for which it may 
be used. DHS notes that if there is an explanation from the LEA for the 
withdrawal or disavowal, adjudicators should consider that explanation 
in determining whether to still consider the declaration as evidence of 
compliance with requests for assistance.
    DHS acknowledges that even if a declaration is disavowed or 
withdrawn, an individual may still meet the eligibility requirements 
for T nonimmigrant status, and a withdrawal or disavowal will not 
always lead to revocation of T nonimmigrant status. In addition, prior 
to issuing a Notice of Intent to Revoke (NOIR) based on the withdrawal 
or disavowal of the Supplement B, DHS would reassess an applicant's 
eligibility based on all available evidence. If DHS intends to revoke T 
nonimmigrant status following the withdrawal or disavowal of a 
Supplement B, DHS will issue a NOIR to inform the individual of the 
agency's intent to revoke T nonimmigrant status and the basis for 
intended revocation. The individual would then be able respond to the 
NOIR with additional evidence to overcome any noted deficiencies or 
discrepancies. The NOIR would detail or summarize the reasons for 
withdrawal or disavowal from the LEA and any other bases for intended 
revocation, but DHS declines to codify a requirement that USCIS provide 
a copy to the individual.
b. Revoked Continued Presence
    DHS has similarly clarified that if the DHS Center for Countering 
Human Trafficking (CCHT) revokes a grant of Continued Presence (CP), 
generally the CP grant will no longer be considered as evidence of the 
applicant's compliance with the corresponding LEA investigation or 
prosecution but may be considered for other purposes. See new 8 CFR 
214.204(i). If DHS determines that the revocation of the CP grant was 
unrelated to an applicant's compliance, for example revocation based on 
departing without advance parole or for subsequent criminal conduct, it 
may continue to consider the grant of CP as evidence of the applicant's 
compliance with the LEA investigation or prosecution.
3. Requirement To Sign Law Enforcement Declaration
    Comment: One commenter stated DHS should clarify in the regulations 
that immigration judges and ICE counsel should be required to sign law 
enforcement declarations. The commenter wrote that a directive to 
immigration judges and ICE attorneys should indicate that they, and not 
just Homeland Security Investigations (HSI),

[[Page 34875]]

should be able to detect trafficking and certify in the process.
    Response: DHS declines to adopt this recommendation. DHS cannot 
require any certifying agencies to certify a case, as signing the LEA 
Declaration is at the discretion of the LEA and the LEA Declaration is 
not a required piece of initial evidence. However, DHS agrees that 
immigration judges and ICE attorneys may submit declarations upon 
detection of trafficking consistent with applicable law and agency 
policy. However, DHS may accept declarations from immigration judges 
and ICE attorneys should such declarations be permissible under 
applicable law and agency policy.

H. Bona Fide Determination (BFD)

    By statute, a determination that an application for T nonimmigrant 
status is bona fide (T BFD) enables trafficking survivors to obtain 
certain stabilizing benefits, including access to Federal services and 
benefits via the issuance of Certification Letters from HHS,\14\ and 
the ability to obtain an administrative stay of removal.\15\ The 
preamble to the 2016 IFR provided that USCIS may grant deferred action 
if the application for T nonimmigrant status is deemed bona fide, and 
the applicant could request employment authorization based on the grant 
of deferred action.\16\ Although an extensive BFD process was codified 
in the 2016 IFR, such a process has not been implemented in the last 
decade outside of litigation cases due to resource constraints and the 
inefficiencies of the prior process. Under the extensive BFD review 
process set forth in the IFR, USCIS generally adjudicated the merits of 
T nonimmigrant applications in the same amount of time that it would 
take to issue a BFD. Therefore, it has generally been more efficient to 
adjudicate the T visa application alone than to conduct both a BFD 
review and full adjudication of the same application.
---------------------------------------------------------------------------

    \14\ 22 U.S.C. 7105(b)(1)(E)(i)(II)(aa).
    \15\ INA sec. 237(d)(1); 8 U.S.C. 1227(d)(1). This statutory 
provision authorizes the Secretary of Homeland Security to grant an 
administrative stay of removal to an individual whose Application 
for T Nonimmigrant Status sets forth a ``prima facie case for 
approval,'' until the application is approved or there is a final 
administrative denial on the application after the exhaustion of 
administrative appeals. A determination that the application is 
``bona fide'' is also sufficient to establish that the applicant has 
established a ``prima facie case for approval'' within the meaning 
of section 237(d)(1) of the INA, 8 U.S.C. 1227(d)(1). ``Prima 
facie'' means that the application appears sufficient on its face, 
which is encompassed by the bona fide determination described at 8 
CFR 214.205.
    \16\ See 81 FR 92279.
---------------------------------------------------------------------------

    The revised BFD process codified in this rule at 8 CFR 214.205 is 
as follows: USCIS will conduct an initial review of the T nonimmigrant 
status application filed on or after the effective date for 
completeness and conduct and review the results of background checks to 
determine if the application is bona fide and the applicant merits a 
favorable exercise of discretion to receive a grant of deferred action 
and employment authorization. Applicants must file a Form I-765, 
Application for Employment Authorization, under proposed 8 CFR 
274a.12(c)(40) to receive a BFD Employment Authorization Document 
(EAD), even if they have indicated on Form I-914, Application for T 
Nonimmigrant Status that they are requesting an EAD. If an applicant 
has not already filed a Form I-765, they will be notified in writing 
that they may do so, to receive a BFD EAD under 8 CFR 274a.12(c)(40). 
DHS strongly recommends that applicants file a Form I-765, Application 
for Employment Authorization, simultaneously with their T nonimmigrant 
status application to facilitate expeditious case processing.\17\ If 
DHS issues a request for evidence in a case filed before the effective 
date of the final rule, DHS will automatically convert previously filed 
applications for employment authorization filed under 8 CFR 
274a.12(a)(16) and (25), to applications for the newly created BFD EAD 
classification. This will limit the need for applicants to submit new 
requests or information, and enable DHS to focus on the adjudication, 
rather than the process of issuing multiple notices, including first 
notifying the applicant that they have a pending bona fide application, 
and then notifying the applicant that they are eligible for employment 
authorization. If initial review does not establish that the 
application is bona fide, USCIS will conduct a full T nonimmigrant 
status eligibility review. If the full review establishes eligibility 
and the statutory cap has been reached, the application will be 
considered bona fide.
---------------------------------------------------------------------------

    \17\ There is no fee for a Form I-765 filed by an applicant 
seeking T nonimmigrant status. 8 CFR 106.3(b)(2)(viii).
---------------------------------------------------------------------------

    In the situation where DHS is issuing a request for evidence and 
thus conducts a bona fide determination on an application filed before 
the effective date of this rule, if an applicant with a pending bona 
fide application has not previously filed an application for employment 
authorization, DHS will issue a notice of eligibility to apply for a 
BFD EAD, indicating that the individual should designate category 
``(c)(40)'' on the application. See new 8 CFR 274a.12(c)(40).
    After receipt of the Form I-765, USCIS will then consider whether 
the applicant warrants a favorable exercise of discretion to be granted 
deferred action, and if granted deferred action, whether they will be 
granted a discretionary employment authorization document.
    In the interim rule, DHS provided that employment authorization for 
a bona fide T nonimmigrant applicant to whom USCIS grants deferred 
action would be requested under category ``(c)(14),'' 8 CFR 
274a.12(c)(14). 81 FR 92285. DHS has decided to record T BFD EADs as a 
separate category from other EADs that are based on a grant of deferred 
action. Accordingly, in this rule DHS amends 8 CFR 274a.12 to establish 
a specific eligibility category for applicants for T nonimmigrant 
status whose applications have been deemed bona fide. These BFD EADs 
will be issued under category (c)(40). See new 8 CFR 274a.12(c)(40). 
DHS notes that a bona fide determination, or an initial grant or 
renewal of a BFD EAD and deferred action does not guarantee that DHS 
will approve the principal applicant or their derivative family members 
for T nonimmigrant status.
    Comment: Several commenters wrote that USCIS has justified its 
operational practice of fully adjudicating the T visa application 
rather than initiating the BFD review process by claiming that because 
there is no T visa application backlog, it is more efficient to conduct 
a full adjudication. Commenters urged USCIS to uphold the regulatory 
mandate to provide BFDs. They emphasized that BFDs provide work 
authorization, which allows survivors to be self-sufficient and help 
reduce the risk of revictimization as well as provide access to 
federally funded public benefits. Commenters also wrote that BFDs are 
much more important given increased processing times, especially as 
applicants lose access to time-limited social services benefits. 
Commenters indicated that USCIS' failure to conduct BFDs has had a 
negative impact on trafficking survivors in removal proceedings and has 
led to survivors being removed while their applications were pending. 
Multiple commenters noted that applicants are forced to proceed with 
other forms of relief in removal proceedings while awaiting a decision 
on their T visa application, which wastes administrative resources and 
inflicts needless trauma.
    Response: DHS acknowledges that processing times have increased in 
recent years. DHS also understands the important stabilizing benefits 
the BFD

[[Page 34876]]

can provide to trafficking survivors, and that a lack of a viable BFD 
process can have negative impacts on victims. DHS is committed to 
implementing a streamlined and operationally efficient BFD process 
through the final rule and has codified a new BFD process at new 8 CFR 
214.205, consistent with DHS's victim-centered approach. Pursuant to 
new 8 CFR 214.204(m), USCIS will conduct a BFD review for applicants in 
the United States once they have applied for principal or derivative T 
nonimmigrant status. DHS has also amended 8 CFR 214.11(d)(7) 
(redesignated as 8 CFR 214.204(m)) to state that USCIS will conduct an 
initial review of an eligible family member's Application for 
Derivative T Nonimmigrant Status once the principal's application has 
been deemed bona fide. However, as a matter of discretion, USCIS 
generally will not grant deferred action and employment authorization 
to an eligible family member based on a bona fide determination unless 
the principal applicant has received a positive bona fide 
determination.
    Comment: Several commenters stated that the IFR's inclusion of an 
inadmissibility determination as part of the BFD is contrary to 
Congressional intent. They recommended that either the filing of a 
waiver of inadmissibility constitute prima facie evidence of 
eligibility, or that USCIS implement the same procedures used in the U 
visa BFD context, which eliminates the requirement that USCIS assess an 
applicant's admissibility as part of the BFD process. Some commenters 
further recommended that DHS amend the standard for finding an 
application to be bona fide to mirror the requirements to establish a 
prima facie case in an application for benefits available under VAWA. 
See 8 U.S.C. 1641; 8 CFR 204.2(c)(6).
    Response: DHS agrees with the commenters' suggestion to remove the 
inadmissibility determination from the BFD process. The BFD process is 
an initial review, and an assessment of the applicant's admissibility 
is not necessary to determine whether an application is bona fide. In 
addition, as commenters noted, considering admissibility twice during 
adjudication would be inefficient and burdensome and would delay the 
BFD process. Accordingly, DHS has eliminated the requirement that USCIS 
analyze an applicant's admissibility as part of the BFD process, but 
will implement other safeguards, including background checks, to ensure 
the applications are bona fide, that the applicants merit a favorable 
exercise of discretion and do not present a threat to national 
security, and to maintain the integrity of the program.
    Comment: Commenters also requested DHS eliminate 8 CFR 
214.11(e)(1)(ii), which requires a T visa applicant to demonstrate that 
their application ``does not appear to be fraudulent,'' because the 
fraud assessment is superfluous to the other BFD requirements.
    Response: DHS agrees with the commenters' rationale. Because USCIS 
considers an applicant's compliance with initial evidence requirements 
and background checks in the T visa BFD process, as well as whether the 
applicant merits a favorable exercise of discretion, it is unnecessary 
to separately analyze whether the application appears to be fraudulent. 
DHS has removed consideration of whether an application appears to be 
fraudulent from the BFD review process. An applicant who attempts to 
gain an immigration benefit through fraud is inadmissible,\18\ and 
would not be granted deferred action or a BFD EAD.
---------------------------------------------------------------------------

    \18\ See INA 212(a)(6)(C)(i), 8 U.S.C. 1182(a)(6)(C)(i).
---------------------------------------------------------------------------

    Comment: Commenters urged DHS to implement a BFD review process for 
T derivative applicants, applying the standards set forth in the Policy 
Manual for eligible family members of U visa applicants.
    Response: DHS understands the importance of BFDs not just for 
principal applicants, but for their eligible family members. Conducting 
BFD reviews and providing initial benefits to eligible family members 
is also consistent with a victim-centered approach, as it provides 
victims needed support from stabilized family members. DHS will conduct 
BFDs for eligible family members who are in the United States at the 
time of review, if the principal has already received a BFD.
    Comment: Several commenters requested that USCIS commit to a 30- or 
90-day timeline for making a bona fide determination and notifying 
applicants of the outcome in 8 CFR 214.11(e)(2) (redesignated here as 8 
CFR 214.205(c)).
    Response: Although DHS recognizes that being without work 
authorization or Federal benefits may be a hardship for applicants, it 
declines to mandate that USCIS conduct a BFD within a certain number of 
days. USCIS strives to process all immigration benefits in a reasonable 
and timely manner; however, USCIS cannot guarantee that the 
determination will be completed within any set number of days. The 
volume of applications to be reviewed will vary over time, each 
application is unique, and some may be complex. In addition, there are 
aspects of the determination beyond USCIS' control (for example, 
background checks) that may take longer than 90 days.
    Comment: Some commenters recommended that qualified trafficking 
survivors on the waiting list should be granted BFDs and should have 
access to employment authorization and Federal benefits to ensure their 
safety, and so they are not vulnerable to exploitation or trafficking.
    Response: DHS acknowledges the importance of these benefits for 
trafficking survivors, which is why USCIS will initiate the BFD process 
upon initial review of the application. After considering the comments 
on the interim final rule and our recent experience with the program, 
DHS has added 8 CFR 214.205(a)(3), which provides that USCIS will 
conduct a full T nonimmigrant status eligibility review of any 
applications that do not initially receive a favorable BFD. Applicants 
who are determined eligible following the T nonimmigrant status 
eligibility review will then be issued a BFD if the statutory cap has 
been met. In addition, applicants with a favorable BFD may be 
considered for deferred action and may request employment authorization 
based on a grant of deferred action. 8 CFR 214.205(d)(1).
    DHS notes that the T visa waiting list has never been utilized in 
the history of the program due to the statutory cap never being 
reached. However, if the statutory cap is met, USCIS will place all 
applications that have been issued a BFD on the waiting list, including 
those that are deemed eligible for a BFD following a T nonimmigrant 
status eligibility review. 8 CFR 214.210(b). This revision will allow 
BFD recipients to be on the waiting list without having to provide 
additional information, avoid USCIS having to perform additional 
processing of cases with a BFD to place them on the waiting list, and 
provide all applications on the waiting list equal status of BFD, 
instead of some receiving a BFD and others being deemed approvable but 
for the unavailability of a visa.
    This change will not affect the order in which applications are 
processed. The following fiscal year, when a new statutory cap becomes 
available, the oldest pending applications that are on the waiting list 
and have been granted a BFD will be processed first. The oldest 
application may not necessarily be approved in date-received order 
depending on updates and additional evidence that may be needed to 
adjudicate the application to a final decision. The date that 
applicants receive a BFD will generally not affect

[[Page 34877]]

the order in which their application will be processed for cap 
adjudication.
    Comment: Several commenters encouraged DHS to add language to the 
final rule that requires ICE to take affirmative steps to seek a BFD 
from USCIS for detainees with pending applications for T nonimmigrant 
status, which commenters note would lead to a stay of removal.
    Response: DHS declines to add this language to the final rule as 
unnecessary, because all applications filed after the effective date of 
the final rule will receive a BFD review. In addition, in August 2021, 
ICE issued a Directive that addresses using a victim-centered approach 
with noncitizen crime victims, including applicants for T nonimmigrant 
status.\19\ The ICE directive specifies that ICE will coordinate with 
USCIS to ``seek expedited adjudication of victim-based immigration 
applications and petitions'' and that in the cases of a detained 
individual with a pending application for a victim-based immigration 
benefit, ICE will request USCIS expedite the decision.\20\ USCIS will 
continue to coordinate with ICE on this process.
---------------------------------------------------------------------------

    \19\ U.S. Immigr. & Customs Enforcement, U.S. Dep't of Homeland 
Security, ``ICE Directive 11005.3: Using a Victim-Centered Approach 
with Noncitizen Crime Victims'' (2021), https://www.ice.gov/doclib/news/releases/2021/11005.3.pdf (ICE Directive).
    \20\ Id.
---------------------------------------------------------------------------

I. Evidence To Establish Trafficking
    Comment: Several commenters wrote that they appreciate that 8 CFR 
214.11(f)(1) (redesignated here as 8 CFR 214.206(a)) includes examples 
of evidence that may be submitted to demonstrate a trafficker's purpose 
in cases where no commercial sex act or forced labor occurred. They 
also stated that they approve of the non-exhaustive list at 8 CFR 
214.11(f)(1) (redesignated 8 CFR 214.206(a)) of examples of evidence 
that may be submitted to demonstrate the trafficker's purpose in this 
type of scenario. However, these same commenters also recommended that 
DHS expand the list of possible evidence and expressed that trafficking 
victims may not be able to supply the types of evidence in the list. 
They suggested DHS add additional types of evidence; clarify that all 
forms of evidence are acceptable; and clarify that no form of evidence 
is preferred over another. Specifically, commenters wrote that DHS 
should clarify that a law enforcement declaration or grant of Continued 
Presence are not required or preferred forms of evidence. The 
commenters also requested that 8 CFR 214.11(f)(l) (redesignated here as 
8 CFR 214.206(a)) be revised to state that a victim's statement alone 
could be sufficient in proving attempted victimization.
    Response: DHS agrees with the commenters' rationale and has amended 
the list of evidence in new 8 CFR 214.206(a). Although the list is not 
intended to be exhaustive, the regulation may have unintentionally 
emphasized certain types of evidence. In amending this list, DHS 
emphasizes that alternate forms of evidence can be submitted to 
establish an individual is a victim of a severe form of trafficking, or 
to establish the trafficker's purpose. DHS acknowledges there are some 
types of evidence that victims are more likely to have. Each form of 
evidence alone may be sufficient under the any credible evidence 
standard, and no form of evidence is preferred over another. As noted 
above, DHS declines to amend the regulatory text to explicitly state 
that a victim's statement alone may prove victimization. While DHS may 
determine, based on the facts and circumstances of a particular case, 
that a personal statement alone may be sufficient to prove 
victimization, in such a scenario, the victim's statement would have to 
be sufficiently detailed, plausible, and consistent in order to satisfy 
evidentiary requirements. With all T visa applications, DHS makes an 
individualized determination of whether trafficking has been 
established based on the evidence in each particular case. However, DHS 
encourages applicants to submit any additional credible evidence that 
could help establish their claim.
    Comment: One commenter wrote that they were concerned about the 
statement in the Preamble to the 2016 IFR that 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. See 81 FR 92272. That commenter requested that DHS clarify 
that reliable sources could include not only direct evidence, but also 
circumstantial evidence as well as the victim's own statement. The 
commenter asked that DHS assess the purpose or motivation of the 
trafficker in the same way it assesses the motive of a persecutor in 
asylum cases.
    Response: DHS declines to specify in the regulation that 
circumstantial evidence and the applicant's affidavit can be submitted 
to establish the trafficker's purpose or motive. The evidentiary 
standards that DHS applies to all T nonimmigrant status eligibility 
requirements are based on an understanding that victims of severe forms 
of trafficking in persons often have difficulty acquiring evidence and 
that the best available evidence may include circumstantial evidence. 
But, as noted above, under the regulations an applicant's affidavit may 
be sufficient if it is sufficiently detailed, plausible, and consistent 
in order to satisfy evidentiary requirements. DHS declines to adopt 
asylum standards, as trafficking and asylum are distinct and involve 
unique forms of relief.

J. Physical Presence \21\
---------------------------------------------------------------------------

    \21\ DHS also received comments regarding physical presence and 
law enforcement involvement, which are addressed above in Section D, 
Definitions.
---------------------------------------------------------------------------

1. Applicability of Physical Presence Requirement
    Comment: One commenter requested DHS replace the language in 8 CFR 
214.11(g)(1) (redesignated here as 8 CFR 214.207(a)) that reads ``The 
requirement reaches an alien who'' with ``An applicant must demonstrate 
one of the following requirements.'' The commenter stated the wording 
was confusing for applicants and practitioners.
    Response: DHS agrees that the language in 8 CFR 214.11(g)(1) caused 
confusion. DHS revised this section (new 8 CFR 214.207) to make it 
active tense and clarified the applicability of the physical presence 
standard, such that it reads: ``An applicant must demonstrate that they 
are physically present under one of the following grounds . . . .''
2. Passage of Time Between Trafficking and Filing the T Visa
    Comment: Commenters stated that DHS has imposed a de facto deadline 
for physical presence, leading adjudicators to erroneously conclude 
that the mere passage of time signifies that an individual's physical 
presence in the United States is unrelated to their trafficking. The 
commenters claim this excludes many bona fide victims, who may file for 
T nonimmigrant status long after their trafficking. Commenters also 
recommended DHS explicitly consider when a survivor learned of their 
status as a victim of trafficking, by modifying Sec.  214.11(g)(4) 
(redesignated here as 8 CFR 214.207(c)).
    Response: DHS acknowledges the commenters' concerns and has 
clarified in the text of multiple provisions of the regulation that 
physical presence may be established regardless of the length of time 
that has passed between the trafficking and filing of the application. 
For example, DHS has clarified that under 8 CFR 214.207(a)(2) and (3), 
the applicant may satisfy the physical

[[Page 34878]]

presence requirement if they were liberated from a severe form of 
trafficking in persons by an LEA at any time prior to filing their T 
visa application. This is intended to clarify that there is no de facto 
deadline for filing. DHS has also already clarified its interpretation 
via policy guidance, consistent with the legislative intent behind the 
program.\22\ In addition, under 8 CFR 214.207(a)(4), DHS has added that 
the current presence may be directly related, ``regardless of the 
length of time that has passed between the trafficking and filing'' of 
the applicant's T visa application.
---------------------------------------------------------------------------

    \22\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of 
Homeland Security, ``Volume 3, Humanitarian Protection and Parole, 
Part B, Victims of Trafficking, Chapter 2, Eligibility 
Requirements,'' https://www.uscis.gov/policy-manual/volume-3-part-b-
chapter-2 (stating that an individual may satisfy the physical 
presence requirement regardless of the time that has passed since 
liberation from the initial trafficking and filing the T visa 
application) (last updated Oct. 20, 2021).
---------------------------------------------------------------------------

    DHS acknowledges that survivors of trafficking experience serious 
consequences because of their victimization that can delay filing, 
including lack of access to legal representation, trauma, lack of 
support, and even lack of knowledge that they are a victim of 
trafficking. DHS emphasizes that the passage of time alone does not 
negate an applicant's ability to establish physical presence on account 
of the trafficking. In addition, DHS has clarified in the regulation 
that when analyzing physical presence, it will consider when and how an 
applicant learned that they were a victim of human trafficking.\23\ DHS 
acknowledges that many survivors may delay filing for legitimate 
reasons; however, the applicant still bears the burden of establishing 
that their current presence in the United States is on account of 
trafficking.
---------------------------------------------------------------------------

    \23\ See new 8 CFR 214.207(c)(1)(i).
---------------------------------------------------------------------------

3. LEA Liberation and LEA Involvement
    Comment: Many commenters requested DHS remove 8 CFR 
214.11(g)(1)(ii) and (iii) (redesignated here as 8 CFR 214.207(a)(2) 
and (3)) because there has been no guidance clarifying the practical 
distinction between these provisions versus paragraph (g)(1)(iv) 
(redesignated here as 8 CFR 214.207(a)(5)), and adjudicators have 
required applicants claiming physical presence under paragraph 
(g)(1)(ii) or (iii) to also demonstrate their continuing physical 
presence.
    Response: DHS declines to remove the language at new 8 CFR 
214.207(a)(2) and (3), as these provisions are important ways 
applicants can establish their physical presence. DHS acknowledges 
there has been confusion surrounding these provisions. To establish 
physical presence under new 8 CFR 214.207(a)(2), an individual must 
demonstrate that law enforcement assisted in liberating them from their 
trafficking situation. To satisfy physical presence under new 8 CFR 
214.207(a)(3), an individual must demonstrate that law enforcement 
became actively involved in detecting, investigating, or prosecuting 
the acts of trafficking. To establish physical presence under new 8 CFR 
214.207(a)(5), regardless of where the trafficking occurred, an 
individual must establish that they have been allowed entry into the 
United States for the purpose of participating in the detection, 
investigation, prosecution, or judicial processes associated with an 
act or perpetrator of trafficking. DHS has retained these provisions as 
additional means by which an applicant can establish physical presence; 
however, as discussed above, DHS has updated these sections to clarify 
that physical presence can be satisfied if the LEA liberated the 
applicant from the trafficking situation or was involved in detecting, 
investigating, or prosecuting the acts of trafficking the case at any 
point prior to the application process.
4. Presumption of Physical Presence
    Comment: Several commenters urged DHS to adopt a broader 
interpretation of ``physical presence on account of trafficking'' such 
that a presumption of physical presence could apply in various 
scenarios, including physical presence at the time of filing.
    Response: DHS appreciates the commenters' concerns but declines to 
codify any generalized presumptions of physical presence in the 
regulations. The applicant bears the burden of establishing that they 
satisfy each eligibility criteria for T nonimmigrant status, including 
physical presence on account of trafficking at the time of filing and 
adjudication. Each application for T nonimmigrant status will be 
evaluated on its own merits. Although DHS declines to formally codify 
any presumptions of physical presence, DHS has clarified how physical 
presence may be satisfied, consistent with many of the commenters' 
requests. For example, the regulations have expanded the evidence 
applicants may submit to establish physical presence or overcome the 
effect of a prior departure. DHS notes that generally, where the 
applicant provides evidence that they are receiving services in the 
United States as a trafficking victim or pursuing civil, 
administrative, or criminal remedies because of the trafficking, this 
will be considered favorably in the physical presence assessment. 
Because DHS cannot enumerate all circumstances under which an applicant 
may satisfy physical presence, DHS declines to codify any presumption.
5. Continuing Presence and Nexus to Trafficking
    Comment: Many commenters suggested revising 8 CFR 214.11(g)(1)(iv) 
(redesignated here as 8 CFR 214.207(a)(4)) to refer to ``current 
presence'' rather than ``continuing presence.'' One commenter stated 
that DHS ignores, discounts, or improperly analyzes the impacts of 
trafficking victimization in analyzing continuing presence. The 
commenter recommended DHS provide a non-exhaustive list of factors that 
USCIS will consider in determining whether an applicant has 
demonstrated continuing presence.
    Response: DHS agrees that the ``continuing presence'' terminology 
at 8 CFR 214.11(g)(1)(iv) has caused confusion for adjudicators and 
stakeholders. DHS has replaced the phrase with ``current presence.'' 
This change is intended to clarify that the focus of the evaluation is 
on the applicant's presence at the time of filing and adjudication, 
rather than their presence prior to that time. See new 8 CFR 
214.207(a)(4). DHS has also revised the regulation to include a non-
exhaustive list of factors USCIS will consider in analyzing the 
physical presence requirement, at redesignated 8 CFR 214.207(c) 
(discussed further below). These updates clarify expectations regarding 
timeline requirements and bring this provision into present tense.
    Commenter: One commenter requested the rule clarify that for an 
applicant's continuing presence in the United States to be directly 
related to their original trafficking, it is sufficient that if the 
applicant were to depart the United States, they would suffer hardship 
as a result of circumstances caused by their trafficking, regardless of 
whether such hardship constitutes extreme hardship. The commenter also 
requested the rule clarify that whether the applicant's continuing 
presence in the United States is directly related to their original 
trafficking, and whether the applicant would suffer extreme hardship 
upon removal are separate requirements that may be supported by the 
same evidence.
    Response: DHS declines to adopt this recommendation. Physical 
presence is a current assessment of an applicant's experience, whereas 
extreme hardship

[[Page 34879]]

is a prospective assessment of hardship the applicant may face. 
Although DHS acknowledges that the same evidence may be presented to 
satisfy multiple eligibility requirements, an applicant must explain 
how the evidence satisfies each eligibility requirement. The applicant 
bears the burden of establishing each eligibility requirement and 
clearly explaining how the evidence presented addresses each 
eligibility criteria.
    Comment: Another commenter stated that if DHS retains the 
requirement that certain victims demonstrate that their continuing 
presence is directly related to trafficking, the rule should provide 
explicit guidance as to what sort of nexus is and is not required to 
meet this test. Another commenter indicated that USCIS practice 
suggests that if a survivor becomes stable at any point after their 
trafficking victimization, they are no longer present in the United 
States on account of their trafficking. The commenter emphasized that 
progress in a victim's life does not negate the ongoing impact of the 
trafficking victimization.
    Response: DHS has revised the regulations to include a more 
expansive list of scenarios that can establish physical presence on 
account of trafficking. DHS has also provided significant guidance for 
adjudicators in its Policy Manual on analyzing whether an applicant's 
ongoing presence is directly related to their trafficking.\24\ The 
Policy Manual provides that if the applicant has repeatedly traveled 
outside the United States since the trafficking, and their departures 
are not the result of continued victimization; or the applicant lacks 
continued ties to the United States or has established an intent to 
abandon life in the United States; this may support a finding that 
their current presence is not directly connected to the original 
trafficking. On the other hand, developments in an applicant's life 
following the trafficking do not prevent an applicant from establishing 
ongoing presence on account of trafficking. An applicant may still 
demonstrate that their current presence in the United States is 
directly related to the initial victimization and should not be 
penalized for stabilizing themselves following their victimization.
---------------------------------------------------------------------------

    \24\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of 
Homeland Security, ``Volume 3, Humanitarian Protection and Parole, 
Part B, Victims of Trafficking, Chapter 2, Eligibility 
Requirements,'' https://www.uscis.gov/policy-manual/volume-3-part-b-
chapter-2 (last updated Oct. 20, 2021).
---------------------------------------------------------------------------

    USCIS will assess the specific impacts of trafficking on the 
applicant's life at the time of application. The applicant may not 
establish eligibility if the evidence of the ongoing impact of trauma 
on the applicant's life does not sufficiently establish the connection 
between the trafficking and the applicant's presence in the United 
States at the time of filing.
6. Effect of Departure or Removal
    Comment: Commenters asked DHS to eliminate the ``departure from the 
United States'' language at 8 CFR 214.11(g)(2) (redesignated here as 8 
CFR 214.207(b)). Commenters indicated that the departure language 
prevents trafficking victims from obtaining benefits simply by virtue 
of their removal, even if they have a pending T application. They 
requested that DHS update the final rule to clarify that if an 
individual was in the United States on account of trafficking when they 
filed the application, subsequent departure or removal should not bar 
relief.
    Response: DHS appreciates the concerns the commenters have raised 
but declines to eliminate the language describing the effect of 
departure or removal on physical presence. Instead, DHS has codified 
additional scenarios by which victims who have departed the United 
States following their victimization and subsequently re-entered may 
establish physical presence (including returning to the United States 
to pursue remedies against their trafficker or returning to seek 
treatment or services related to victimization they cannot obtain 
elsewhere). See new 8 CFR 214.207(b)(4) and (5). In addition, although 
DHS appreciates the sensitivities and unique impact removal has on 
applicants for T nonimmigrant status, T visa applicants must 
demonstrate physical presence in the United States pursuant to the 
statute.
    Comment: Other commenters suggested that the rule should identify 
scenarios that may demonstrate that a victim's reentry to the United 
States is the ``result of continued victimization'' under Sec.  
214.11(g)(2)(i) (new 8 CFR 214.207(b)(1)) and would satisfy the 
physical presence requirement. The commenters proposed the following 
scenarios be included in the regulations: reentry into the United 
States (1) due to current fear of the traffickers in the victim's home 
country or last place of residence; (2) to seek treatment for 
victimization from trafficking which cannot be provided in the victim's 
home country or last place of residence; or (3) to pursue civil and 
criminal remedies against the traffickers in the victim's home country 
or last place of residence.
    Response: DHS agrees with the second and third suggestions and has 
updated the regulations accordingly, such that both suggestions are 
encompassed in the new language at 214.207(b)(3)-(5). DHS declines to 
adopt the first suggestion, as a reentry to the United States due to 
current fear of the traffickers in the victim's home country or last 
country of residence would already fall under the ``continued 
victimization'' scenario articulated in 8 CFR 214.11(g)(2) 
(redesignated 8 CFR 214.207(b)).
    Comment: One commenter requested that if DHS did not remove the 
departure language from the regulation, it should substantially alter 
the language found in 8 CFR 214.11(g)(2) (redesignated 8 CFR 
214.207(b)), such that the regulation: acknowledges the possibility 
that a trafficker may have played a role in the survivor's departure 
from the United States; clarifies that a new incident of trafficking or 
new attempted incident of trafficking is not required; makes explicit 
that reentry related to fear of retaliation or re-victimization by the 
traffickers allows an applicant to meet this requirement; and clarifies 
that applicants may meet this requirement if, after their return to the 
United States, regardless of the exact motivation of the reentry, they 
are actively cooperating with an investigation or prosecution of 
trafficking.
    Response: DHS has clarified how an applicant may establish physical 
presence after departure from and reentry to the United States by 
adding additional scenarios that can allow an applicant who has 
departed and returned to establish physical presence at 8 CFR 
214.207(b)(4) and (5). These new provisions aim to provide clarity and 
reduce barriers for victims. Under new 8 CFR 214.207(b)(4), an 
applicant may establish physical presence after departure if their 
current presence in the United States ``is on account of their past or 
current participation in investigative or judicial processes associated 
with an act or perpetrator of trafficking, regardless of where such 
trafficking occurred.'' An applicant may satisfy this provision 
``regardless of the length of time that has passed between their 
participation in an investigative or judicial process associated with 
an act or perpetrator of trafficking'' and the filing of their 
application for T nonimmigrant status. See new 8 CFR 214.207(b)(4). 
These new provisions allow individuals who have participated in 
investigative or judicial processes to establish physical presence 
following a prior departure, regardless of their manner of entry or 
where such trafficking occurred. Under new 8 CFR 214.207(b)(5), an 
applicant may establish physical presence following a

[[Page 34880]]

previous departure if they returned to the United States and received 
treatment or services related to their victimization that cannot be 
provided in their home country or last place of residence. These 
additions support the dual purpose of the T visa, acknowledge there may 
be various reasons an individual may depart the United States, are 
consistent with a victim-centered approach to combatting trafficking, 
and do not require an individual to be revictimized to establish 
physical presence following a departure.
7. Trafficking That Occurs Outside the United States, and Traveling 
Outside the United States Following Victimization
    Comment: Various commenters wrote that DHS interprets the physical 
presence requirement too narrowly for victims whose trafficking 
occurred outside the United States or who traveled outside of the 
United States after suffering trafficking. They stated that trafficking 
victims may be present in the United States on account of trafficking 
in various situations, including those in which they were trafficked in 
a neighboring country that failed to protect them before fleeing to the 
United States for protection. Some commenters stated that Congress did 
not specifically require that the trafficking occur in the United 
States or have violated U.S. law to qualify for the T visa. One 
commenter wrote that presence in the United States at the time of 
filing the application for T nonimmigrant status should be sufficient 
to meet the requirement, regardless of where the trafficking occurred 
or the circumstances of the applicant's reentry. Commentors also 
encouraged DHS to ensure definitions and interpretations acknowledge 
the global nature of trafficking, such as international child 
pornography rings and international sex trafficking rings, often with 
perpetrators based in the United States even if the trafficking 
occurred abroad.
    Response: First, DHS acknowledges that trafficking may have a 
global nature and include a nexus to the United States even if the 
trafficking occurred abroad; however, DHS declines to interpret the 
TVPA to encompass trafficking situations in which a trafficking victim 
seeks protection in the United States for a trafficking situation that 
occurred fully outside U.S. borders and for which there is no nexus to 
the United States--either through presence at a United States port of 
entry on account of the trafficking or cooperation with U.S. law 
enforcement.
    Congress created T nonimmigrant status with a dual purpose: to 
protect victims of a severe form of trafficking in persons and to 
encourage and facilitate assistance to U.S. law enforcement to 
prosecute and combat human trafficking. See generally, TVPA section 
102, 22 U.S.C. 7101. Congress provided an incentive for victims of a 
severe form of trafficking in persons to report their victimization by 
providing for an immigration benefit contingent upon complying with 
reasonable requests for assistance to LEAs. Id.; new 8 CFR 214.202(c). 
If DHS adopted the commenters' suggested interpretation of the physical 
presence requirement, victims who were trafficked anywhere in the world 
could seek T nonimmigrant status in the United States, although a U.S. 
law enforcement agency would not necessarily have jurisdiction to 
investigate or prosecute the trafficking. This result would not be 
consistent with the dual purposes for which Congress created T 
nonimmigrant status.
    DHS appreciates the difficult circumstances facing victims 
trafficked outside of the United States, particularly when an applicant 
is unable to find protection elsewhere; however, DHS does not believe 
that Congress intended to offer protection in the form of T 
nonimmigrant status in the United States to victims who suffer 
trafficking in other countries, who flee to the United States for 
protection, and whose trafficking has no nexus to the United States. 
DHS acknowledges, however, there may be situations in which trafficking 
could have occurred abroad that would make an applicant eligible for T 
nonimmigrant status; as indicated in the Policy Manual, applicants 
whose trafficking ended outside of the United States may be able to 
satisfy physical presence if they can demonstrate that they are now in 
the United States or at a port of entry on account of trafficking or 
were allowed valid entry into the United States to participate in a 
trafficking-related investigation or a prosecution or other judicial 
process. Cases where trafficking occurred abroad require an 
individualized and nuanced consideration. Consistent with this 
interpretation, DHS has amended 8 CFR 214.11(g)(1)(v) (redesignated 8 
CFR 214.207(a)(5)) to indicate that an applicant may be deemed 
physically present under this provision regardless of where such 
trafficking occurred. See new 8 CFR 214.207(a)(5)(i). DHS has 
consolidated the language at 8 CFR 214.11(g)(3) at new 8 CFR 
214.207(a)(5)(ii) and (b)(3) to instruct applicants how they may 
demonstrate physical presence, by showing documentation of valid entry 
into the United States for purposes of an investigative or judicial 
process associated with an act or perpetrator of trafficking.
    Comment: Another commenter requested that DHS address situations 
where trafficking occurred abroad, but the applicant can satisfy 
physical presence because the trafficking is directly the result of 
U.S. immigration policy.
    Response: DHS emphasizes that applicants who are physically present 
in the United States or at a port of entry on account of trafficking 
can demonstrate eligibility for T nonimmigrant status even if the 
trafficking occurred abroad; however, the requirement that an applicant 
be physically present in the United States or at a port of entry is a 
statutory requirement that cannot be waived. Eligibility may be 
established where there exists a nexus between the trafficking and 
presence in the United States.
8. Opportunity To Depart
    Comment: Commenters also requested DHS strike the reference to the 
``applicant's ability to leave the United States'' at 8 CFR 
214.11(g)(4) because such evidence is unnecessary, and DHS had already 
removed the requirement for an applicant to prove they had no 
``opportunity to depart'' the United States. Another commenter 
indicated that DHS imposes a de facto ``opportunity to depart'' 
requirement.
    Response: DHS agrees that striking the ``ability to leave'' 
language is consistent with the prior removal of the ``opportunity to 
depart'' language and has revised the regulation accordingly. DHS 
clarifies that an applicant need not show they had no opportunity to 
depart the United States to establish physical presence.
9. Presence for Participation in Investigative or Judicial Process
    Comment: Commenters stated that DHS incorrectly interprets the 
language in 8 CFR 214.11(g)(3), redesignated as Sec.  214.207(a)(5)(ii) 
and (b)(3) to require a victim's entry through lawful means. See 81 FR 
92274. The commenters claim the statute does not indicate that only 
lawful reentries or those arranged by the government can be used to 
demonstrate physical presence. The commenters noted that the 
regulations are not structured to include non-criminal processes, and 
it is likely that LEAs will not be involved in such proceedings, making 
it unlikely that a victim would be able to enter the United States 
through lawful means. The commenters

[[Page 34881]]

also stated that it would be unlikely for a victim to have a visa 
authorized for the purpose of pursuing civil remedies.
    Response: DHS maintains that the current interpretation requiring a 
lawful entry to establish physical presence based on ``having been 
allowed entry into the United States for participation in investigative 
or judicial processes associated with an act or a perpetrator of 
trafficking,'' remains the best legal reading of the statutory language 
added by TVPRA 2008, as explained in detail in the 2016 IFR preamble. 
Where the regulatory provisions focus on the purpose of the entry, for 
example at 8 CFR 214.11(g)(2)(iii) (new 8 CFR 214.207(b)(3)), the 
statutory authority comes from the ``allowed entry'' language found in 
section 101(a)(15)(T)(i)(II) of the INA, 8 U.S.C. 
1101(a)(15)(T)(i)(II), which includes physical presence on account of 
an individual ``having been allowed entry.'' DHS therefore is retaining 
the provisions as drafted, striking 8 CFR 214.11(g)(3), and moving the 
language to new 8 CFR 214.207(a)(5)(ii) and (b)(3). However, having 
been allowed entry to participate in investigative or judicial 
processes is just one example of how an individual can establish they 
are physically present on account of trafficking, and DHS acknowledges 
that the requirement of a lawful reentry in 8 CFR 214.11(g)(3) has had 
unintentional limitations, such that victims of trafficking who 
departed the United States and reentered unlawfully, but are present in 
order to participate in an investigative or judicial process associated 
with the trafficking, were unable to establish eligibility due to their 
manner of reentry. DHS believes it is consistent with Congressional 
intent to recognize that such victims may be able to establish that 
they are physically present on account of trafficking, regardless of 
the manner of reentry or the time that has passed between cooperation 
and filing of the T visa application. Accordingly, DHS has added new 8 
CFR 214.207(b)(4), which focuses on the reason for the victim's current 
presence rather than the purpose or means of their entry. DHS maintains 
that ``allowed entry'' as used in section 101(a)(15)(T)(i)(II) of the 
INA, 8 U.S.C. 1101(a)(15)(T)(i)(II), signifies a ``lawful entry'' for 
purposes of initial entry and reentry after departure.
    Comment: Another commenter requested that DHS revise the language 
in 8 CFR 214.11(g)(3) (consolidated into 8 CFR 214.207(a)(5)(ii) and 
(b)(3)) to include civil or administrative investigations, 
prosecutions, or judicial processes associated with acts or 
perpetrators of trafficking.
    Response: DHS declines to make this edit, as the new language at 8 
CFR 214.207(b)(5) encompasses these processes. ``Investigative or 
judicial processes'' covers all the suggested language from the 
commenter, and includes criminal, civil, administrative, or other 
investigations, prosecutions, or judicial processes.
10. Evidence To Establish Physical Presence
    Comment: One commenter requested that in determining whether 
trafficking survivors are present on account of trafficking, DHS should 
consider the ability or inability of survivors to access legal and 
social services after escaping a trafficker.
    Response: DHS emphasizes that adjudicators consider all evidence 
presented, including the applicant's ability to access services 
following victimization. DHS has made several clarifications and 
amendments to redesignated 8 CFR 214.207(c) to address this concern; 
however, DHS cannot specifically agree to such a broad request to 
acknowledge consideration of an applicant's inability to access 
services if this information is not presented via evidence relevant to 
a particular case.
    Commenter: Another commenter proposed significant revisions to 8 
CFR 214.11(g)(4) (redesignated as 8 CFR 214.207(c)). The commenter 
stated that Requests for Evidence appear to require mental health 
diagnoses, which places survivors in rural areas at great disadvantage; 
and current emphasis on law enforcement evidence reinforces that 
evidence from law enforcement is considered primary evidence and 
encourages misinterpretation that there is a statute of limitations to 
file for a T visa.
    Response: DHS has updated the evidentiary requirements for how 
applicants may establish that they are physically present in the United 
States on account of trafficking in redesignated 8 CFR 214.207(c). The 
amended section codifies a non-exhaustive list of evidence with the 
intent of providing clarity to stakeholders and adjudicators around 
evidentiary expectations. DHS acknowledges that the prior regulation 
may have inadvertently created confusion surrounding what types of 
evidence are preferred, rather than underscoring that any credible 
evidence will be considered in determining whether an applicant has 
established physical presence in the United States on account of 
trafficking. Although the list at 8 CFR 214.207(c) has been 
significantly expanded, DHS again emphasizes that there is no preferred 
or required type of evidence, and victims may be more likely to have 
access to certain types of evidence.

K. Compliance With Any Reasonable Request for Assistance

1. Requirement To Comply With Reasonable Request
    Comment: One commenter requested DHS rephrase, reconsider, or 
remove the requirement that an applicant for a T visa cooperate with 
law enforcement, particularly because of safety considerations for 
relatives abroad and continued victimization. The commenter also stated 
that LEAs deport individuals who refuse to cooperate.
    Response: DHS declines to adopt this recommendation. Although DHS 
is sympathetic to these concerns, the statute requires compliance with 
a reasonable request for assistance in order to be eligible to receive 
T nonimmigrant status. DHS notes that there is a trauma exception and 
an age exemption to this eligibility requirement to account for 
circumstances that may impact an applicant's ability to comply with 
reasonable requests for assistance. In addition, as discussed above, 
DHS endeavors not to remove trafficking victims and applicants for T 
nonimmigrant status outside of exigent circumstances.\25\ Moreover, as 
discussed further below, the statute and regulations provide 
eligibility for T nonimmigrant status to family members facing a 
present danger of retaliation as a result of the principal T 
nonimmigrant's escape from the severe form of trafficking or 
cooperation with law enforcement. See 8 CFR 214.211; INA sec. 
101(a)(15)(T)(ii)(III), 8 U.S.C. 1101(a)(15)(T)(ii)(III).
---------------------------------------------------------------------------

    \25\ The White House, ``The National Action Plan to Combat Human 
Trafficking,'' (2021) https://www.whitehouse.gov/wp-content/uploads/2021/12/National-Action-Plan-to-Combat-Human-Trafficking.pdf 
(National Action Plan); U.S. Dep't of Homeland Security, 
``Department of Homeland Security Strategy to Combat Human 
Trafficking, the Importation of Goods Produced with Forced Labor, 
and Child Sexual Exploitation'' (Jan. 2020), https://www.dhs.gov/sites/default/files/publications/20_0115_plcy_human-trafficking-forced-labor-child-exploit-strategy.pdf (DHS Strategy); ``ICE 
Directive 11005.3,'' https://www.ice.gov/doclib/news/releases/2021/11005.3.pdf.
---------------------------------------------------------------------------

2. Incompetence and Incapacity
    Comment: Commenters requested DHS expand the exceptions for 
compliance with a reasonable request for assistance, including lack of 
capacity/competency found in the U visa regulations. The commenters 
proposed including the same exception for individuals lacking capacity 
or competency even if it is not linked to the trafficking because it 
often prevents

[[Page 34882]]

victims from complying with reasonable requests from law enforcement.
    Response: DHS appreciates and shares these concerns about 
individuals who lack capacity or competency; however, the age exemption 
and trauma exception are both statutory. There is no statutory 
authority for an incapacity or incompetence exemption or exception. 
Instead, DHS has included consideration of an individual's capacity, 
competency, or lack thereof as factors to be considered when 
determining whether a request was reasonable. Moreover, the existing 
age exemption and trauma exception cover incapacity or incompetence due 
to age or trauma suffered. The existing exemption and exception, 
coupled with DHS's addition of capacity/competency as a factor to 
consider will have the same intended effect as a specific exception for 
incapacity and incompetency.
3. Minimum Contact With Law Enforcement
    To meet the requirement that an applicant comply with reasonable 
LEA requests for assistance, 8 CFR 214.11(h)(1) (redesignated 8 CFR 
214.208(b)) mandates that an applicant, at a minimum, has contacted an 
LEA regarding an act of a severe form of trafficking in persons, unless 
an exemption or exception applies.
    Comment: One commenter requested DHS clarify that an applicant 
under 18 years of age who reports the trafficking to the National Human 
Trafficking Hotline or Office of Trafficking in Persons meets the 
requirement that the person report to LEAs and comply with reasonable 
requests, including if they make an anonymous report.
    Response: DHS emphasizes that applicants who are under the age of 
18 at the time of victimization are, by statute, exempt from the 
requirement to cooperate with any reasonable requests for assistance 
from law enforcement. Additionally, reports to the National Human 
Trafficking Hotline or the Office of Trafficking in Persons would 
generally satisfy the reporting requirement, if the person making the 
report requested or provided permission for the report to be referred 
to law enforcement; however, anonymous reports generally do not satisfy 
the requirement, as they do not meet the required evidentiary standard 
of proof.
    Comment: Some commenters supported DHS' removal of regulatory 
provisions describing how to obtain an LEA declaration when the victim 
has not had contact with an LEA. See 81 FR 92276. Commenters stated 
that adjudicators apply inconsistent standards as to what type of 
contact with an LEA is sufficient. They wrote that some applicants have 
documented in their T visa applications that they reported to law 
enforcement, but received no LEA response, and then received RFEs 
requesting additional documentation of law enforcement contact 
including a Supplement B or proof of Continued Presence. The commenters 
recommended that DHS amend 8 CFR 214.11(h)(1) (redesignated 8 CFR 
214.208(b)) to provide that a single contact with law enforcement by 
telephone or electronic means documented by the applicant is sufficient 
to meet the eligibility requirement. They also recommended that in this 
same section, DHS repeat aspects of the definition of an LEA to speed 
responses to RFEs, clarify the minimum amount of LEA contact required, 
and clarify that it is not necessary that law enforcement respond to 
the contact. Commenters also requested DHS explicitly clarify in the 
regulations that participation in civil, family, juvenile, criminal, 
administrative or any type of court proceedings involving human 
trafficking or where the victim reveals facts of the trafficking to the 
court meets the ``contact with an LEA'' requirement.
    Response: DHS agrees to adopt this recommendation regarding 
clarifying what constitutes minimum conduct and has revised the 
regulation to state that a single contact through telephonic, 
electronic, or other means may suffice. The means of contact can vary 
depending on the agency and the facts of the case. Applicants may 
document whether the LEA responded, and the type of response received. 
DHS encourages applicants to document all interactions they have had 
with law enforcement. DHS also clarified that the LEA to which the 
applicant reports must have jurisdiction over the reported crime. DHS 
emphasizes that there is no requirement that an individual provide a 
Supplement B or evidence of a Continued Presence grant, that an 
investigation or prosecution has been initiated, or that law 
enforcement respond to the applicant. While an investigation or 
prosecution is not necessary, the LEA's response to the report of 
trafficking is helpful to understand LEA involvement in the criminal 
case and determine whether the applicant meets the requirement to 
comply with any reasonable LEA requests. DHS does not consider it 
necessary to repeat the definition of an LEA or to specify every type 
of contact or the context of that contact that would suffice, given 
that redesignated 8 CFR 214.201 (defining an LEA) clearly specifies the 
types of agencies that qualify as LEAs.
4. Determining the Reasonableness of a Request
    Comment: Multiple commenters suggested eliminating language in 8 
CFR 214.11(a) (redesignated here as 8 CFR 214.201) and 8 CFR 
214.11(h)(2) (redesignated as 8 CFR 214.208(c)) referencing the 
presence of an attorney. The commenters stated that the presence of an 
attorney should not be evaluated as a factor in whether an LEA request 
was reasonable and doing so may lead to victims with an attorney being 
held to higher standards in complying with LEA requests than those 
without an attorney present. The commenters wrote that the presence of 
an attorney does not make the law enforcement request more or less 
reasonable.
    Response: DHS declines to adopt this recommendation. Whether an 
attorney was present during an LEA request is just one of the 
potentially many factors that DHS considers in examining the totality 
of the circumstances. Applicants may feel pressured to comply with an 
LEA request in the absence of an attorney, so DHS believes that it is 
appropriate to include it as a relevant factor. Furthermore, including 
an attorney's presence as a factor does not create a higher standard 
for victims who have attorneys present when requests are made, nor does 
it put such victims at a relative disadvantage. The presence or absence 
of an attorney generally will not be dispositive, but is a relevant 
factor in determining the reasonableness of a request, and will be 
analyzed on a case-by-case basis.
    Comment: Several commenters requested that a ``qualified 
interpreter'' be added into 8 CFR 214.11(h)(2) (redesignated as 8 CFR 
214.208(c)), as language access during LEA interactions is critical to 
victim protections and is legally required by the Civil Rights Act.
    Response: DHS agrees that language access during such interaction 
is important for victims and has updated the language at new 8 CFR 
214.208(c)(11) accordingly.
    Comment: Commenters requested DHS add additional factors in 
determining the reasonableness of a request, including: the 
circumstances in which a request was made, the ability and health of an 
applicant, and the nature of trauma suffered. Commenters stated it was 
critical to understand the context in which requests are made of 
victims, as well as the circumstances of the victim themselves. The 
commenters also requested striking ``severe'' from

[[Page 34883]]

``severe trauma'' at 8 CFR 214.11(h)(2) (redesignated as Sec.  
214.208(c)) because all trauma should be considered.
    Response: DHS generally agrees with these comments and has amended 
the list of factors to consider, by adding the victim's capacity, 
competency, or lack thereof; removing ``severity'' of trauma; adding 
``qualified'' to interpreters; adding the ``health'' of the victim; and 
adding ``any other relevant circumstances surrounding the request.'' 
See new 8 CFR 214.208(c). DHS believes that these clarifying changes 
will improve determinations of the applicant's compliance with a 
reasonable LEA request.
5. Trauma Exception
    Comment: Several commenters expressed support for provisions 
clarifying the types of supporting evidence that applicants can submit 
to establish that they meet the trauma exception from the general 
eligibility requirement of compliance with any reasonable LEA request 
for assistance in 8 CFR 214.11(h)(4)(i) (redesignated here as 8 CFR 
214.208(e)(1)). Commenters suggested DHS consider the circumstances of 
the victim while they were being victimized and the surrounding 
circumstances, which may have exacerbated the trauma. They also 
recommended including additional examples of types of evidence that 
could be submitted to establish that an applicant meets the trauma 
exception.
    Response: DHS has revised the regulations to include additional 
examples of evidence that may be submitted to establish the applicant 
qualifies for the trauma exception, to benefit adjudicators and 
applicants, give applicants additional information, and allow for 
consistency in adjudications. The updated provision clarifies that an 
applicant's statement should explain the circumstances surrounding the 
trauma and includes additional types of credible evidence that may be 
submitted. See 8 CFR 214.208(e)(1).
    Comment: One commenter recommended DHS define what constitutes 
physical or psychological trauma to help applicants determine what 
evidence to submit when claiming the exception.
    Response: DHS declines to include a definition of trauma in the 
regulatory text, as it could have the unintended effect of restricting 
access to benefits for victims.
    Comment: One commenter stated that requiring an applicant to prove 
trauma to qualify for the exception risks re-traumatization, and that 
implicit in the definition of trafficking is some element of trauma. 
The commenter stated that requiring survivors to retell their 
experiences could hinder healing, and this could be mitigated by 
mandating a signed attestation to the psychological trauma from a 
qualified individual. The commenter stated that not requiring an 
applicant's affidavit would reduce the risk of re-traumatization.
    Response: DHS declines to adopt this recommendation. DHS is 
sympathetic to the risks of re-traumatization for survivors of 
trafficking, but the trauma exception is statutory. The personal 
statement is and will continue to be initial required evidence because 
it is one of the most important sources of information for adjudicators 
in determining whether an individual meets the eligibility requirements 
for T nonimmigrant status. The personal statement also allows an 
applicant to provide credible evidence of their experiences in their 
own words, without requiring them to provide other evidence that may be 
more difficult to obtain. In addition, adjudicators consider the impact 
of trauma and victimization when evaluating the personal statement.\26\ 
DHS declines to mandate a signed attestation from a medical or other 
qualified professional, as this would be inconsistent with the ``any 
credible evidence'' standard and would create a limitation on types of 
evidence that may be submitted under this standard.
---------------------------------------------------------------------------

    \26\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland 
Security ``Volume 3, Humanitarian Protection and Parole, Part B, 
Victims of Trafficking, Chapter 3, Documentation and Evidence for 
Principal Applicants,'' https://www.uscis.gov/policy-manual/volume-3-part-b-chapter-3 (last updated Oct. 20, 2021).
---------------------------------------------------------------------------

6. DHS Contact With Law Enforcement
    Comment: Several commenters requested that DHS amend 8 CFR 
214.11(h)(4)(i) (redesignated here as 8 CFR 214.208(e)(1)) to provide 
that, in cases where an applicant has invoked the trauma exception and 
is unable to comply with reasonable LEA requests, USCIS will only 
contact an LEA if the applicant has already had initial contact. These 
commenters stated that maintaining this provision might discourage 
applicants who fear that USCIS' discretion to contact an LEA could 
potentially endanger applicants or their family members. Multiple 
commenters also requested clarification to ensure adjudicators 
understand that applicants who qualify for the exception are not 
required to have any contact with any LEA.
    Response: DHS appreciates the sensitivities of applicants who are 
seeking an exception due to trauma and acknowledges that individuals 
who qualify for the trauma exception are not required to have had 
contact with any LEA. However, DHS feels it is important to retain the 
authority to contact law enforcement agencies for any information that 
may be necessary to adjudicate an application, in certain limited 
circumstances, even where an applicant has not already contacted an 
LEA. This is especially true for T nonimmigrant status, which requires 
cooperation with law enforcement unless the trauma exception or age 
exemption applies. See 8 CFR 214.208. DHS has stricken the reference to 
contacting law enforcement in relation to the trauma exception and has 
created a new section at 8 CFR 214.208(f) indicating that USCIS 
reserves the authority and discretion to contact an LEA involved in a 
case where an applicant previously contacted an LEA or when otherwise 
permitted by law. See, e.g., 8 U.S.C. 1367.
7. Age Exemption
    Comment: Several commenters commended DHS for updating its 
regulations to reflect the statutory provision that minors under 18 
years of age are not required to comply with any reasonable law 
enforcement requests. See INA sec. 101(a)(15)(T)(i)(III). Multiple 
commenters requested that DHS clarify its interpretation of the 
exemption by amending 8 CFR 214.11(h)(4)(ii) (redesignated here as 8 
CFR 214.208(e)(2)) to specify that the relevant age for determining 
whether this exemption is met is the age at the time of victimization, 
not the age at the time of application. Commenters stated this change 
is important because child trafficking victims in particular suffer 
long-term trauma that may limit their ability to cooperate with law 
enforcement and to confide in their attorneys. Additionally, commenters 
noted that attorneys may not identify applicants who suffered 
trafficking as a minor until after they have turned 18. One commenter 
requested that DHS consider increasing the age for the minor exemption. 
Another commenter stated there should be no requirement to comply with 
reasonable requests for assistance from law enforcement regardless of 
age, considering that brains are not fully developed until the age of 
25. One commenter requested DHS clarify that any credible evidence 
related to a minor's age be included. The commenter indicated they work 
with many children who do not have access to birth certificates, 
passports, or certified medical opinions; whose documents have been 
withheld by their legal guardians; or do not know their

[[Page 34884]]

own birthdates or exactly where they were born.
    Response: DHS agrees that suffering human trafficking as a child 
can be particularly traumatizing and has significant and negative 
impacts on development. DHS has revised the regulation to clarify that 
the exemption for minors applies based on the age of the applicant at 
the time of victimization. An applicant is exempt from the requirement 
to comply with reasonable law enforcement requests if the applicant was 
under 18 years of age at the time at least one of the acts of 
trafficking occurred. This is consistent with longstanding DHS policy 
and practice. DHS declines to increase the age for the minor exemption 
above age 18, as this exemption is provided in the statute. Moreover, 
DHS declines to remove the requirement to comply with reasonable 
requests for assistance, as it is a statutory requirement, and 
individuals who were under the age of 18 at the time of at least one of 
the acts of trafficking or may not be able to comply with reasonable 
requests for assistance due to trauma qualify for an exemption or 
exception.
    DHS also acknowledges that minors may have difficulty obtaining 
certain types of evidence to establish their age and has revised the 
regulation to emphasize that any other credible evidence regarding age 
will be considered.

L. Extreme Hardship

    Comment: One commenter requested DHS remove the extreme hardship 
requirement altogether. Another commenter wrote that the standard for 
``unusual and severe harm'' in 8 CFR 214.11(i) (redesignated here as 8 
CFR 214.209) for purposes of evaluating whether an applicant would 
suffer extreme hardship if removed from the United States is 
unnecessarily narrow and should include considerations of hardship 
inflicted on individuals other than the applicant. The commenter also 
recommended that DHS revise this section to take greater account of 
economic detriment and financial harm as factors in assessing hardship, 
particularly when those factors create a risk of re-victimization. The 
commenter requested DHS add language to 8 CFR 204.11(i) (redesignated 
here as 8 CFR 214.209) ``indicating that current or economic detriment 
may be considered as one factor in assessing hardship, particularly 
when it creates a risk of re-victimization.'' Another commenter 
supported the broad list of factors that should be considered, but also 
requested to include financial and support issues, and encouraged DHS 
to provide a greater list of possible, but not exhaustive factors to be 
considered.
    Response: DHS declines to fully adopt these recommendations. DHS 
cannot remove the extreme hardship eligibility requirement, as it is 
required by statute. See INA sec. 101(a)(15)(T)(i)(IV), 8 U.S.C. 
1101(a)(15)(T)(i)(IV) (``the alien would suffer extreme hardship 
involving unusual and severe harm upon removal''). The statute is clear 
that the extreme hardship eligibility requirement refers to hardship 
that the applicant would suffer and does not include hardship to anyone 
other than the applicant as a factor. See INA sec. 101(a)(15)(T), 8 
U.S.C. 1101(a)(15)(T). Accordingly, USCIS will not consider hardship to 
family members unless the evidence demonstrates specific harms that the 
applicant will suffer upon removal as a result of hardship to a family 
member. DHS has amended redesignated 8 CFR 214.209(c)(2) to provide 
this clarification.
    DHS has revised 8 CFR 214.209 to include economic harm as an 
extreme hardship factor. Economic harm has always been considered a 
factor; the prior regulation indicated that economic detriment alone 
could not be the sole basis for a finding of extreme hardship involving 
unusual and severe harm. Although the revised regulations do not bar 
economic hardship as the sole basis for such a finding, it must rise to 
the level of extreme hardship involving unusual and severe harm, and 
thus, generally, economic hardship alone may not suffice. However, 
adjudicators will consider the totality of the circumstances and all 
relevant factors in making an extreme hardship determination. Each case 
will require an analysis based on the specific facts and circumstances 
present.
    Comment: One commenter requested that DHS clarify whether the 
hardship must be directly related to trafficking and that it does not 
need to rise to the level of extreme hardship.
    Response: As discussed above, DHS has not removed the reference to 
extreme hardship in the regulation. DHS clarifies that an applicant's 
hardship does not need to be directly related to their trafficking. See 
8 CFR 214.209.

M. Family Members Facing a Present Danger of Retaliation

    The regulations at 8 CFR 214.11(k) (redesignated here as 8 CFR 
214.211) implement section 101(a)(15)(T)(ii)(III) of the INA, 8 U.S.C. 
1101(a)(15)(T)(ii)(III), to provide that T nonimmigrant status may be 
available for a parent, unmarried sibling under the age of 18, or the 
adult or minor child of a derivative of the principal facing a present 
danger of retaliation as a result of the T-1 nonimmigrant's escape from 
the severe form of trafficking or cooperation with law enforcement. One 
commenter expressed support for 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.
    Comment: Commenters requested that DHS mandate an expedited 
adjudication process for these applications, which would protect family 
members at risk and encourage victims of trafficking to report their 
victimization. Some commenters recommended a specific 30-day timeline.
    Response: DHS shares the commenters' concerns about family members 
at risk; however, it declines to impose processing deadlines on itself 
given staffing resources and the case-by-case review required in 
adjudicating T visa applications. DHS notes that there is already a 
process in place to request expedited processing based on urgent 
humanitarian reasons. Guidance for requesting expedited processing can 
be found on the USCIS website.\27\
---------------------------------------------------------------------------

    \27\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland 
Security, ``How to Make an Expedite Request,'' https://www.uscis.gov/forms/filing-guidance/how-to-make-an-expedite-request 
(last updated Oct. 20, 2022).
---------------------------------------------------------------------------

    Comment: Commenters also wrote that section 101(a)(15)(T)(ii)(III) 
of the INA, 8 U.S.C. 1101(a)(15)(T)(ii)(III), does not provide an 
opportunity to request T nonimmigrant status for a principal's adult 
children who face a present danger of retaliation. Some commenters 
indicated they understood that DHS had limited ability to address this 
statutory gap, while others stated that DHS could construe the statute 
more broadly to include these adult children but did not provide legal 
support for this assertion.
    Response: DHS acknowledges that the statute omits a principal's 
adult children who face a present danger of retaliation. However, the 
statutory language is not ambiguous on this point and a change in the 
law to include a principal's adult children would be necessary to 
include adult children of a T-1 nonimmigrant as eligible family 
members. INA sec. 101(a)(15)(T)(ii)(III), 8 U.S.C. 
1101(a)(15)(T)(ii)(III).
    Comment: Commenters wrote that family members at risk of 
retaliation from traffickers have difficulty securing evidence listed 
in 8 CFR 214.11(k)(6) (redesignated here as 8 CFR 214.211(f)) to prove 
a present danger of retaliation. They requested that DHS indicate that 
a victim's statement describing the present danger of retaliation alone 
would be sufficient or, at a minimum,

[[Page 34885]]

clarify that police reports filed in the home country and affidavits 
from witnesses in the home country would meet the evidentiary standard. 
Several commenters requested that DHS consider any credible evidence of 
the danger of retaliation.
    Response: DHS appreciates the difficulties that trafficking victims 
and their family members may have in obtaining evidence. For this 
reason, the rule is clear that applicants may submit any credible 
evidence related to all the eligibility requirements for both principal 
applicants and derivative applicants. See, e.g., 8 CFR 214.204(c) and 
(l). The standard also applies specifically to the evidentiary standard 
for proving that an eligible family member faces a present danger of 
retaliation. See 8 CFR 214.211(a)(3). In cases where the LEA has not 
investigated the trafficking, USCIS will evaluate any credible evidence 
demonstrating derivatives' present danger of retaliation. The types of 
evidence listed at 8 CFR 214.211(f) are non-exhaustive examples, and 
the inclusion of ``and/or'' at the end of the list before the inclusion 
of ``any credible evidence'' clarifies that USCIS will consider any 
credible evidence.
    An applicant's personal statement alone could be sufficient to 
establish a present danger of retaliation, in accordance with the ``any 
credible evidence'' standard. See new 8 CFR 214.211(f). DHS has not 
specifically revised the rule to state that a statement describing the 
present danger of retaliation alone would be sufficient, as this is 
already permitted by the ``any credible evidence'' standard, and 
referencing one particular piece of evidence in the regulatory text 
could unintentionally discourage applicants from submitting additional 
relevant, credible evidence that would assist in the adjudication. DHS 
encourages applicants to submit additional credible evidence whenever 
possible to provide USCIS adjudicators with as complete an 
understanding of the facts of the case as possible.
    The ``any credible evidence'' standard also encompasses evidence 
originating from a family member's home country; however, DHS has 
clarified that evidence may be from the United States or any country in 
which an eligible family member faces retaliation at new 8 CFR 
214.211(f).
    Comment: One commenter requested DHS revise the T-6 regulation to 
eliminate the policy of requiring that a derivative beneficiary of a T-
1 nonimmigrant have already secured T nonimmigrant status before their 
adult or minor children facing present danger of retaliation become 
eligible for T-6 status. They stated that DHS's interpretation of 
``derivative beneficiary'' is overly narrow, that the interpretation 
that the term means someone who has ``derived status'' and 
``benefited'' from the qualifying relationship has no basis, and that 
it is inconsistent with DHS's own use of the term ``beneficiary'' 
elsewhere.
    Response: DHS appreciates the commenter's concerns; however, it 
maintains that its interpretation as presented in the 2014 Policy 
Memorandum \28\ regarding T derivatives (T Derivative Memo) is the 
correct legal reading of the statute. The commenter's contention that a 
``derivative beneficiary'' may include someone who merely ``stands to 
benefit,'' but has not, at minimum, sought such a benefit, lacks 
statutory support. DHS maintains that the phrase ``adult or minor 
children of a derivative beneficiary'' plainly requires the T-6 family 
member to establish their eligibility through their relationship to the 
derivative beneficiary of the principal. A plain language reading of 
``derivative beneficiary'' is someone who has derived a benefit; that 
is, an individual who has derived their nonimmigrant status as a family 
member, as defined at section 101(a)(15)(T)(ii) of the INA, 8 U.S.C. 
1101(a)(15)(T)(ii), and who has benefited from the qualifying 
relationship to the principal. As noted in the T Derivative Memo, this 
means that a ``derivative beneficiary'' is a family member described in 
section 101(a)(15)(T)(ii)(I) and (II) of the INA, 8 U.S.C. 
1101(a)(15)(T)(ii)(I) and (II), who has been granted derivative T 
nonimmigrant status. Accordingly, a ``derivative beneficiary'' must 
have been granted T-2, T-3, T-4, or T-5 nonimmigrant status through the 
principal in order for the derivative beneficiary's adult or minor 
child to be eligible for T-6 nonimmigrant status. This conclusion is 
further supported by the requirement under section 101(a)(15)(T)(ii) of 
the INA, 8 U.S.C. 1101(a)(15)(T)(ii) that any derivatives be 
``accompanying, or following to join'' the principal T-1 applicant.
---------------------------------------------------------------------------

    \28\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland 
Security, ``New T Nonimmigrant Derivative Category and T and U 
Nonimmigrant Adjustment of Status for Applicants from the 
Commonwealth of the Northern Mariana Islands'' (2014), https://www.uscis.gov/sites/default/files/document/memos/Interim_PM-602-0107.pdf (T Derivative Memo).
---------------------------------------------------------------------------

    As noted in the T Derivative Memo, Congress created the T-6 
classification through a relationship to a derivative, instead of 
directly to a principal, as it is in other immigration benefits. 
Therefore, establishing a qualifying relationship between the T-6 
family member and their parent is insufficient to derive eligibility as 
a T-6, if the T-6's parent never held T nonimmigrant status as a T 
derivative beneficiary. To be eligible for T-6 classification, the 
adult or minor child must establish the qualifying relationship to 
their parent who actually derived T nonimmigrant status through the 
principal beneficiary. Accordingly, DHS declines to make any changes in 
response to this comment.

N. Marriage of Principal After Principal Files Application for T 
Nonimmigrant Status

    The regulation at redesignated 8 CFR 214.211(g)(4) states that if 
an applicant marries after filing the application for T-1 nonimmigrant 
status, USCIS will not consider the spouse eligible for derivative T-2 
nonimmigrant status.
    Comment: Several commenters wrote that this limitation on eligible 
derivatives relies on an unnecessarily narrow interpretation of section 
101(a)(15)(T)(ii) of the INA, 8 U.S.C. 1101(a)(15)(T)(ii), by requiring 
that a spousal relationship exist at the time of filing. They suggested 
that the spouse from a marriage that occurs after the principal 
applicant applies for T-1 nonimmigrant status should be able to be 
considered as a T-2 derivative spouse.
    Response: The U.S. Court of Appeals for the Ninth Circuit, in 
Medina Tovar v. Zuchowski, held that the regulatory requirement at 8 
CFR 214.14(f)(4) that a spousal relationship must exist at the time a 
Petition for U Nonimmigrant Status is filed for the spouse to be 
eligible for classification as a derivative U-2 nonimmigrant was 
invalid.\29\ As a matter of policy, DHS applies this decision 
nationwide to spousal and stepparent relationships arising in 
adjudications of derivative U nonimmigrant status petitions, as well as 
derivative T nonimmigrant status applications.\30\ Accordingly, DHS has 
amended the regulations in the final rule to adopt the holding in 
Medina Tovar for T nonimmigrant adjudications and has stricken the 
following language: ``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.'' DHS has

[[Page 34886]]

added language that principal applicants who marry while their 
Application for T Nonimmigrant Status is pending may file an 
Application for Family Member of T-1 Recipient on behalf of their 
spouse, even if the relationship did not exist at the time they filed 
their principal application. See new 8 CFR 214.211(e). DHS has also 
included language allowing for a principal applicant to apply for a 
stepparent or stepchild if the qualifying relationship was created 
after they filed their principal application but before it was 
approved. Finally, DHS has clarified that it will evaluate whether the 
marriage creating the qualifying spousal relationship or stepchild and 
stepparent relationship exists at the time of adjudication of the 
principal's application and thereafter.
---------------------------------------------------------------------------

    \29\ Medina Tovar v. Zuchowski, 982 F.3d 631 (9th Cir. 2020).
    \30\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland 
Security, ``Volume 3, Humanitarian Protection and Parole, Part B, 
Victims of Trafficking, Chapter 4, Family Members, Section D, Family 
Relationship at the Time of Filing,'' https://www.uscis.gov/policy-manual/volume-3-part-b-chapter-4 (last updated Oct. 20, 2021).
---------------------------------------------------------------------------

    Comment: One commenter requested that principal applicants should 
be permitted to apply for derivative T status for the parent of the 
principal's derivative children, as many individuals may not formalize 
their committed relationships through marriage.
    Response: Although DHS sympathizes with these situations, the 
family relationships giving rise to derivative T nonimmigrant status 
eligibility are set forth at section 101(a)(15)(T)(ii) of the INA, 8 
U.S.C. 1101(a)(15)(T)(ii). Thus, DHS declines to add a new standard for 
derivative benefits for a committed relationship in the T visa context.

O. Relationship and Age-Out Protections

    DHS has amended new 8 CFR 214.211(e)(1) to state that if the 
principal applicant establishes that they have become a parent of a 
child after filing, the child will be deemed an eligible family member. 
This new language replaces ``had a child'' because it is more inclusive 
and accurate, and mirrors similar regulations in the U visa context.
    DHS has also amended new 8 CFR 214.211(e)(3) to state that the age-
out protections apply to a child who may turn 21 during the pendency of 
the principal's application for T nonimmigrant status. The prior text 
erroneously referred to age-out protections for children of principals 
who were 21 years of age or older.

P. Travel Abroad

    Comment: Commenters encouraged DHS to provide advance parole for T 
nonimmigrants in recognition of the fact that victims' families may 
remain abroad. They wrote that victims would feel safer and be able to 
return to the United States without immigration consequences.
    Response: DHS notes that T nonimmigrants are already permitted to 
apply for advance parole, as clarified in both the Form I-914 and Form 
I-131 form instructions and Policy Manual. Applications for advance 
parole are evaluated on a case-by-case basis pursuant to section 
212(d)(5) of the INA, 8 U.S.C. 1182(d)(5). In addition, DHS has 
clarified that a noncitizen granted T-1 nonimmigrant status or an 
eligible family member must apply for advance parole to return to the 
United States after travel abroad. The T nonimmigrant must comply with 
advance parole requirements to maintain T nonimmigrant status upon 
return to the United States and remain eligible to adjust status under 
section 245(l) of the INA, 8 U.S.C. 1255(l). 8 CFR 245.23(j). See new 8 
CFR 214.204(p), 214.211(i)(4).

Q. Extension of Status

    DHS provides in this rule that a derivative T nonimmigrant may file 
for extension of status independently, if the T-1 nonimmigrant remains 
in status, or the T-1 nonimmigrant may file for an extension of their 
own status and request that the extension be applied to their 
derivative family members. This codifies the current process for 
derivatives to seek extensions of status. See new 8 CFR 214.212(b). In 
administering the T nonimmigrant program, USCIS found, and stakeholders 
expressed, that there was a lack of clarity with the extension of 
status process for T nonimmigrants. USCIS issued a Policy Memorandum in 
2016 to clarify requirements for extension of status for T and U 
nonimmigrants (T/U Extension Memo).\31\ DHS is codifying some of the 
policies in the T/U Extension Memo at new 8 CFR 214.212(f). First, this 
rule provides that USCIS may approve an extension of status for 
principal applicants based on exceptional circumstances. Second, when 
an approved eligible family member is awaiting initial issuance of a T 
visa by an embassy or a consulate and the principal's T-1 nonimmigrant 
status will soon expire, USCIS may approve an extension of status for a 
principal applicant based on exceptional circumstances. See new 8 CFR 
214.212(f).
---------------------------------------------------------------------------

    \31\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland 
Security, ``Extension of Status for T and U Nonimmigrants (Corrected 
and Reissued)'' (2016), https://www.uscis.gov/sites/default/files/document/memos/2016-1004-T-U-Extension-PM-602-0032-2.pdf (T/U 
Extension Memo).
---------------------------------------------------------------------------

    Finally, DHS has clarified in the evidence section for extension of 
status that it will consider affidavits from individuals with direct 
knowledge of or familiarity with the applicant's circumstances, rather 
than affidavits of ``witnesses.'' See new 8 CFR 214.212(g)(2)(v).

R. Revocation Procedures

    DHS has clarified the existing practice that an automatic 
revocation cannot be appealed. See new 8 CFR 214.213(a). DHS has also 
clarified at Sec.  214.213(c) that if an applicant appeals a (non-
automatic) revocation, the decision will not become final until the 
appeal is decided. See 8 CFR 103.3. DHS has revised the language at new 
8 CFR 214.213(b)(1) which previously referenced errors that affected 
the ``outcome'' and now refers to errors that led to an ``approval'' of 
a case.
    Comment: Some commenters expressed concern that 8 CFR 214.11(m) 
(redesignated here as 8 CFR 214.213)) eliminates a step in the process 
of revocation, stating that under the prior rule at 8 CFR 214.11(s)(2), 
a notice of intent to revoke (NOIR) would initiate a 30-day window for 
the applicant to submit a rebuttal that a district director would then 
consider as evidence. They proposed that the rule include this prior 
process and provide individuals with an opportunity of rebuttal.
    Response: The removal of this language in the interim rule does not 
reflect a change in USCIS' revocation procedures. T nonimmigrants who 
are issued a NOIR are provided 30 days to respond with evidence to 
rebut the grounds stated for revocation in the notice. These grounds 
and the deadline to respond are stated in all NOIRs. USCIS will 
consider all evidence presented in deciding whether to revoke the 
approved application. The reference to the district director in the 
2002 interim rule is outdated, as district offices are no longer 
involved in revoking T nonimmigrant status. DHS has codified the 
current procedures for NOIRs, including the time period during which an 
individual may submit rebuttal evidence at 8 CFR 214.213(c).

S. Waivers of Inadmissibility

    DHS has the authority to waive grounds of inadmissibility on a 
discretionary basis under section 212(d)(3)(A)(ii) or (d)(13) of the 
INA, 8 U.S.C. 1182(d)(3)(A)(ii), (d)(13).
    Comment: Commenters requested that DHS clarify in the regulation 
that immigration judges have jurisdiction over waiver applications, 
referencing court decisions in the U visa context.
    Response: DHS declines to adopt this recommendation. In the 2002 
interim rule, DOJ delegated T-related waiver authority exclusively to 
the Immigration

[[Page 34887]]

and Naturalization Service (INS), and INS's adjudicative authority 
transferred to USCIS with the Homeland Security Act.\32\
---------------------------------------------------------------------------

    \32\ 6 U.S.C. 271(b).
---------------------------------------------------------------------------

    Comment: In cases involving violent or dangerous crimes, 8 CFR 
212.16 specifies that USCIS will only exercise favorable discretion 
toward the applicant in extraordinary circumstances unless the criminal 
activities were caused by or were incident to the victimization. See 8 
CFR 212.16(b)(3). Several commenters wrote that this provision is too 
stringent in its application. They stated that this language is not 
statutorily required, that victims of trafficking often have 
unfavorable criminal histories that are not directly tied to their 
victimization but are related to their vulnerability that led to their 
exploitation, and that this provision could have a chilling effect on 
victims coming forward to report crimes.
    Other commenters encouraged DHS to require consideration of the 
effects and circumstances of the trafficking as they relate to criminal 
issues. They suggested DHS determine whether the crime occurred before 
the trafficking situation or is related to the trafficking, including 
trauma or vulnerabilities in the wake of trafficking. They requested 
DHS focus not on the seriousness or number of crimes and instead focus 
on a victim-centered approach using a balancing test.
    Response: DHS declines these edits, while recognizing nuances in 
evaluating an applicant's criminal history and the potential for unique 
factors related to victimization. DHS believes that 8 CFR 212.16 
appropriately informs the exercise of discretion and is fundamental to 
maintaining the integrity of the T nonimmigrant status program and the 
ability to adjudicate T visa applications on a case-by-case basis. DHS 
has broad waiver authority to waive most grounds of inadmissibility 
under section 212(d)(3)(A)(ii) and (d)(13) of the INA, 8 U.S.C. 
1182(d)(3)(A)(ii), (d)(13) (if in the national interest for section 
212(a)(1) of the INA, 8 U.S.C. 1182(a)(1), or if in the national 
interest and caused by or incident to the victimization for most other 
provisions of subsection 212(a) of the INA, 8 U.S.C. 1182(a) 
inadmissibility grounds). DHS reserves the ability to evaluate 
inadmissibility grounds in each individual case to ensure that the 
waiver is in the national interest and considers a broad variety of 
factors in doing so. Moreover, DHS already considers all positive and 
negative factors in the exercise of discretion.

T. Adjustment of Status

    DHS has made several changes to the adjustment of status 
regulations for T nonimmigrants. DHS has stricken from 8 CFR 
245.23(a)(3) the requirement that an applicant accrue 4 years in T-1 
nonimmigrant status and file a complete application prior to April 13, 
2009, as all such applications have been adjudicated.
    In addition, DHS has removed the word ``first'' before ``date of 
lawful admission'' in 8 CFR 245.23(a)(4) to clarify the agency's 
interpretation of re-accrual of physical presence following a break in 
presence. This edit clarifies an outstanding legal and policy concern 
in the program and eliminates barriers for victims of trafficking. The 
statutes and regulations permit T nonimmigrants to restart the clock 
after a break in continuous physical presence after the first admission 
as a T nonimmigrant (including, but not limited to, restarting after a 
subsequent admission as a T nonimmigrant, or restarting after returning 
with advance parole after a break in continuous physical presence). 
This interpretation treats T nonimmigrant adjustment of status 
applicants and U nonimmigrant adjustment of status applicants the same 
regarding the requirements for continuous physical presence.
    Comment: Commenters encouraged DHS to take a broader approach to 
adjustment of status eligibility, including allowing derivative family 
members to adjust independently of the T-1 nonimmigrant, and to 
evaluate each application on its own merits. One commenter recommended 
incorporating the policies outlined in the T/U Extension Memo, because 
it allowed derivatives to adjust independently of principals.
    Response: Section 245(l) of the INA, 8 U.S.C. 1255(l), provides 
that if a T-1 nonimmigrant has been continuously physically present for 
three years since admission as a T-1 nonimmigrant (or during the 
investigation or prosecution of trafficking which is complete); 
establishes good moral character; and has complied with any reasonable 
request for assistance in the trafficking investigation or prosecution, 
would suffer extreme hardship involving unusual and severe harm upon 
removal, or was under age 18 at the time of victimization, the 
Secretary may adjust the status of the T-1 nonimmigrant and any person 
admitted under section 101(a)(15)(T)(ii) of the INA, 8 U.S.C. 
1101(a)(15)(T)(ii). Thus, a precondition for a derivative T 
nonimmigrant to adjust status under section 245(l) of the INA, 8 U.S.C. 
1255(l) is that the T-1 nonimmigrant has met the above specified 
requirements (continuous physical presence, good moral character, 
etc.). For all practical purposes, a derivative T nonimmigrant 
generally cannot demonstrate that the T-1 nonimmigrant meets the 
requirements for adjustment of status in the absence of USCIS 
adjudicating an application for adjustment of status from the T-1 
nonimmigrant themself. Therefore, DHS declines to adopt the commenter's 
recommendation to permit T derivatives to adjust independent of the T-1 
principal.
    DHS also notes that the T/U Extension Memo says derivative family 
members with T nonimmigrant status do not lose their status when the T-
1 nonimmigrant adjusts status, allowing the derivative to adjust status 
later. DHS has codified this longstanding policy at 8 CFR 245.23(b)(5).
    Comment: Commenters also requested changes to 8 CFR 245.23(a)(6) 
such that it includes an exemption for trafficking victims under the 
age of 18 at the time of victimization, to be consistent with the 
statute at 8 U.S.C. 1255(l)(1)(C).
    Response: DHS agrees that Congress intended to exempt trafficking 
victims who were under the age of 18 at the time of their victimization 
from being required to contact law enforcement. This exemption should 
apply at the adjustment of status stage; accordingly, DHS has made this 
change to the regulation as a technical edit. Similarly, DHS has added 
reference to the trauma exception, consistent with the statute and 
congressional intent. See new 8 CFR 245.23(a)(7)(iii) and (iv).
    Comment: Other commenters requested changes be made to the minimum 
3-year continuous physical presence requirement because it punishes 
trafficking victims by forcing them to wait, and conditions early 
adjustment eligibility on things outside the victim's control, such as 
the conclusion of the investigation or prosecution.
    Response: DHS is sympathetic to the difficulties victims may face 
in waiting to adjust status; however, the continuous physical presence 
period is statutory and cannot be changed by regulation.
    Comment: Commenters also requested that DHS implement a process by 
which principal applicants who obtain lawful permanent residence and 
subsequently marry may file the equivalent of a Form I-929, Petition 
for Qualifying Family Member of a U-1 Nonimmigrant on behalf of 
eligible family members.

[[Page 34888]]

    Response: DHS is sympathetic to the concerns raised in these 
comments but declines to adopt a process for certain relatives to apply 
to adjust status if they have never held T nonimmigrant status. 
Commenters noted the ability of U-1 nonimmigrants to file for spouses 
they subsequently marry after receiving U nonimmigrant status; U-1 
nonimmigrants are able to do so under 8 U.S.C. 1255(m)(3); however, 
there is no equivalent statutory basis to create such a process in the 
T visa context under 8 U.S.C. 1255(l)(1).

U. Applicants and T Nonimmigrants in Removal Proceedings or With 
Removal Orders

    Commenter: One commenter requested DHS acknowledge that trafficking 
survivors often escape trafficking through arrest or contact with 
Immigration and Customs Enforcement (ICE), who may later prosecute them 
without investigating whether they have been trafficked. The commenter 
requested that special protections be extended to survivors placed in 
removal proceedings and detention, to ensure survivors have access to 
due process in requesting a T visa.
    Response: DHS acknowledges that many survivors may escape their 
trafficking through encounters with ICE. Understanding the concern that 
trafficking victims may require additional protection, DHS has made 
several changes to the regulation (discussed below) to further its 
victim-centered approach. In addition, DHS has made significant 
accomplishments of Priority Actions within the Department of Homeland 
Security Strategy to Combat Human Trafficking, the Importation of Goods 
Produced with Forced Labor, and Child Sexual Exploitation (DHS 
Strategy). For example, in October 2020, DHS launched the Center for 
Countering Human Trafficking (CCHT), a DHS-wide effort comprising 16 
supporting offices and components, led by U.S. Immigration and Customs 
Enforcement (ICE) Homeland Security Investigations (HSI). The CCHT is 
the first unified, intercomponent coordination center for countering 
human trafficking and the importation of goods produced with forced 
labor. In October 2021, the Secretary directed DHS components to 
incorporate a victim-centered approach into all policies, programs, and 
activities governing DHS interactions with victims of crime. Finally, 
in August 2021, ICE issued Directive 11005.3: Using a Victim-Centered 
Approach with Noncitizen Crime Victims, which sets forth ICE policy 
regarding civil immigration enforcement actions involving noncitizen 
crime victims, including victims of trafficking and Continued Presence 
recipients.\33\ This Directive emphasizes the duty to protect and 
assist noncitizen crime victims.
---------------------------------------------------------------------------

    \33\ ``ICE Directive 11005.3,'' https://www.ice.gov/doclib/news/releases/2021/11005.3.pdf.
---------------------------------------------------------------------------

    Comment: Another commenter requested that in cases where applicants 
can make a credible showing that they were placed in removal 
proceedings through retaliatory actions of their trafficker or due to 
their trafficking, DHS should automatically join in a motion to 
administratively close or to terminate the removal proceeding for the 
pendency of the T nonimmigrant application, including through any 
appeals, and overcoming any applicable time and numerical limitations.
    Response: DHS declines to adopt this recommendation. DHS is 
cognizant that individuals may be placed in removal proceedings because 
of their trafficking experience and implements a victim-centered 
approach for all individuals it encounters. DHS believes that the 
following changes (listed in the subsequent seven numbered paragraphs) 
made to the regulation will address many of the commenter's concerns.
1. Principal Applicants, T-1 Nonimmigrants, and Derivative Family 
Members
    Comment: Commenters indicated that their clients have faced 
unnecessary hurdles and additional trauma when seeking to reopen and 
terminate a prior removal order due to opposition by ICE. Commenters 
also stated that ICE ``rarely'' joins applicants' motions to 
administratively close, continue, or terminate proceedings. They 
emphasized that removal from the United States can render a victim 
ineligible for a T visa and vulnerable to re-trafficking or retaliation 
from the trafficker. The commenters suggested that the regulations be 
amended to mandate ICE's participation in joint motions to reopen upon 
a grant of T-1 or T derivative nonimmigrant status in these 
circumstances, or at the respondent's request, ICE should agree to a 
motion to administratively close, terminate or continue proceedings (if 
proceedings are ongoing).
    Response: DHS values the need to conserve government resources and 
maintain coordination across the department; however, DHS declines to 
codify limitations on ICE's ability to make case-by-case 
determinations. In line with the victim-centered approach, we have 
revised the regulation to provide that ICE will maintain a policy 
regarding the exercise of discretion toward all applicants for T 
nonimmigrant status, and all T nonimmigrants. See new 8 CFR 214.214(b). 
To that end, DHS has also revised the regulation at new 8 CFR 
214.204(b)(1)(ii), 214.205(e), and 214.211(b)(2)(ii) to state that ICE 
may exercise prosecutorial discretion as appropriate.
    Comment: Other commenters stated that if DHS disagreed with 
mandating ICE to join such motions, DHS should add permissive language 
to this effect, making clear that the language set forth at 8 CFR 
214.11(d)(1)(ii) and (k)(2)(i) (redesignated as 8 CFR 214.204(b)(2) and 
214.211(b)(2)) applies both to T-1 nonimmigrants as well as T 
derivatives in pending removal proceedings. Other commenters also 
requested the regulation address derivative family members in removal 
proceedings.
    Response: DHS agrees with the commenter's suggestion, and as 
described above, has amended the regulation to state that ICE may 
exercise prosecutorial discretion, including in cases of T derivatives 
or eligible family members. See new 8 CFR 214.211(b)(2)(ii).
2. Immigration Judges
    Comment: Several commenters requested DHS add language to the 
regulation specifically stating that an immigration judge may terminate 
removal proceedings once T nonimmigrant status is granted. They 
requested DHS add language clarifying that an immigration judge can 
administratively close removal proceedings while USCIS adjudicates an 
application for T nonimmigrant status.
    Response: This rule amends DHS regulations only and is not a joint 
Department of Justice (DOJ) rule. Accordingly, comments related to the 
authority of an immigration judge to terminate or administratively 
close removal proceedings are outside the scope of this rule, which 
cannot bind DOJ.
    Comment: Commenters also suggested that the regulation direct 
immigration judges to terminate or administratively close proceedings 
for all T nonimmigrant status applicants and recipients on their own 
accord without a motion or request from the parties.
    Response: DHS declines to adopt this recommendation. This rule 
amends DHS regulations only and is not a joint Department of Justice 
(DOJ) rule. Thus, DHS cannot bind DOJ in this rule.
3. Automatic Stays of Removal
    Comment: One commenter urged DHS to automatically stay removals of

[[Page 34889]]

applicants whose applications are deemed to be properly filed. They 
request in the alternative that DHS expedite bona fide determinations 
for applicants with final orders of removal. Other commenters requested 
that DHS issue a stay of removal to applicants with pending T visa 
applications until a bona fide determination is made.
    One commenter stated that if an application is found to be bona 
fide, DHS should extend an administrative stay of a final order until a 
final decision is made on the application for T nonimmigrant status.
    Response: DHS declines to adopt these recommendations. DHS 
acknowledges the commenters' concerns regarding the removal of 
applicants with pending T visa applications. As a matter of policy, DHS 
generally will not remove applicants with pending T nonimmigrant status 
applications; however, there may be situations where it is prudent for 
DHS to execute removal orders prior to adjudication, and DHS does not 
intend to limit DHS discretion in this manner. DHS feels that the 
regulation's language at 8 CFR 214.204(b)(2)(i) and (ii) is sufficient 
to address these commenter's concerns by providing that, once granted, 
a stay of removal will remain in effect until a final decision is made 
on the application for T nonimmigrant status.
4. Unrepresented Applicants
    Comment: One commenter requested that in cases where an applicant 
is unrepresented in proceedings, DHS should be mandated to move for 
termination, dismissal, administrative closure, or a continuance. The 
commenter stated that actively pursuing removal cases against survivors 
of trafficking is inconsistent with ICE's goal of prioritizing limited 
resources.
    Response: DHS declines to adopt these recommendations. Generally, 
relief from removal has been historically requested by the noncitizen 
and is not initiated by DHS. DHS does not wish to limit ICE's 
discretion by mandating specific actions, as each case will present 
different circumstances. However, DHS agrees that prioritizing the 
removal of trafficking survivors is generally inconsistent with the 
victim-centered approach to which DHS adheres.
5. Detained Applicants
    Comment: Commenters requested DHS be required to release a detained 
applicant once a bona fide determination has been made. Some commenters 
requested that DHS add a provision to the regulation requiring ICE to 
seek expedited processing for all detained T visa applicants 
(principals and derivatives). They also stated that ICE should be 
required to check DHS systems for VAWA confidentiality flags that 
indicate a pending or approved T, U, or VAWA application or petition 
for every detainee within 24 hours of detention. Finally, they state 
the regulation should specify how quickly ICE should make this request 
and how long USCIS should generally take to respond to the expedite 
request.
    Response: DHS declines to adopt this recommendation. DHS 
appreciates the commenter's concerns. Existing USCIS and ICE processes 
already flag protected records via secure methods for information 
sharing, including through the USCIS Central Index System, which, among 
other things, includes flags for individuals whose records are 
protected under 8 U.S.C. 1367.
    In addition, there is already a process in place to request 
expedited processing based on urgent humanitarian reasons, which can be 
found on the USCIS website.\34\ ICE also will request expedited 
adjudication when necessary and appropriate, including when noncitizens 
are detained so adjudication of applications for T nonimmigrant status 
is prioritized. ICE then exercises discretion to defer decisions on 
enforcement action in compliance with their directives and 
processes.\35\ Finally, although DHS understands the commenter's 
concerns about detained T applicants, it declines to impose processing 
deadlines on itself given resource needs and shifting priorities.
---------------------------------------------------------------------------

    \34\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland 
Security, ``How to Make an Expedite Request,'' https://www.uscis.gov/forms/filing-guidance/how-to-make-an-expedite-request 
(last updated Oct. 20, 2022).
    \35\ See ``ICE Directive 11005.3,'' https://www.ice.gov/doclib/news/releases/2021/11005.3.pdf.
---------------------------------------------------------------------------

6. Reinstatement of Removal
    Comment: One commenter requested DHS create a presumption that 
reinstatement of removal would not occur in cases of T, U, and VAWA 
eligible victims, to avoid victims being removed from the United 
States.
    Response: DHS declines to adopt this recommendation. This comment 
is partially out of scope, as DHS can make no changes to VAWA or U 
regulations in this rule because we made no changes to those programs 
in the interim rule. In addition, relief from removal has been 
historically requested by the noncitizen and is not initiated by DHS. 
Operationally, it would take many resources and considerable 
infrastructure to create a process in which DHS could actively seek out 
noncitizens with pending T applications, and who have a prior removal 
order, just to ensure a reinstatement would not be issued. Furthermore, 
DHS declines to limit ICE's discretion in this manner, but emphasizes 
that ICE uses a victim-centered approach in which all relevant 
circumstances are considered.
7. Issuances of Notices To Appear (NTAs)
    Comment: Commenters suggest codifying DHS statements from the 2016 
Interim Final Rule preamble language regarding not issuing NTAs to 
individuals with pending applications for T nonimmigrant status.
    Response: DHS agrees to adopt this suggestion and has introduced a 
new provision at 8 CFR 214.204(b)(3) clarifying that 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 complicit in trafficking. Issuing 
NTAs to survivors of trafficking outside of these circumstances 
undermines both the humanitarian and law enforcement purposes of the 
statute. The new provision at 8 CFR 214.204(b)(3) is consistent with 
several of the Priority Actions outlined in the White House's 2021 
National Action Plan to Combat Human Trafficking \36\ as well as 
several objectives laid out in the DHS Strategy.\37\
---------------------------------------------------------------------------

    \36\ ``National Action Plan,'' https://www.whitehouse.gov/wp-content/uploads/2021/12/National-Action-Plan-to-Combat-Human-Trafficking.pdf. In particular, this aligns with ``Priority Action 
2.2.2: Provide human trafficking victims protection from removal'' 
and ``Priority Action 2.3.2: Provide immigration protections to 
ensure eligible victims are not removed.''
    \37\ ``DHS Strategy,'' https://www.dhs.gov/sites/default/files/publications/20_0115_plcy_human-trafficking-forced-labor-child-exploit-strategy.pdf. Specifically, the new regulation is consistent 
with the priority actions ``Develop Victim-Centered Policies and 
Procedures for DHS Personnel'' and ``Improve Coordination of 
Immigration Options for Victims of Human Trafficking.''
---------------------------------------------------------------------------

V. Notification to ICE of Potential Trafficking Victims

    8 CFR 214.11(o) (redesignated here as 8 CFR 214.215) addresses the 
duty of USCIS employees who encounter potential victims of trafficking 
to consult with the appropriate ICE officials to initiate law 
enforcement investigation and assistance to victims.
    Comment: Commenters requested that DHS reconsider whether USCIS 
employees should be making referrals to consult with ICE officials. 
They wrote

[[Page 34890]]

that interaction with ICE may put trafficking survivors at risk for 
criminal liability and potential deportation and that these 
interactions may harm applicants eligible for the trauma exception or 
who do not feel comfortable cooperating with LEAs. Commenters suggested 
instead that USCIS employees should advise potential victims of their 
possible immigration remedies and provide a referral to the National 
Human Trafficking Hotline. Some commenters suggested that such a 
referral would defeat the purpose of the confidentiality protections at 
8 U.S.C. 1367. They wrote that USCIS should be especially cautious of 
such consultations when the potential victim is represented by an 
attorney or receiving services from a social services agency and 
recommended that DHS revise the provision to require USCIS to consider 
such information when consulting with ICE officials.
    Response: DHS appreciates concerns about the protection of 
vulnerable applicants and the potential consequences of LEA 
intervention, including concerns that represented individuals and those 
receiving social services may have made an informed decision with 
regard to reporting to law enforcement in light of the trauma 
exception; however, referrals to ICE's Homeland Security Investigations 
(HSI) are important given the role they play in combating criminal 
organizations that commit human rights violations, including human 
trafficking. HSI is victim-oriented, has extensive experience handling 
trafficking cases with sensitivity, and employs victim assistance 
specialists that work directly with individuals who have experienced 
trafficking. Sharing information between USCIS and ICE under these 
circumstances is permitted under 8 U.S.C. 1367 because the referral is 
within DHS for legitimate Department purposes, including coordination 
on Continued Presence and expedite requests. Nevertheless, in 
consideration of these comments, DHS has revised 8 CFR 214.215 to state 
that USCIS ``may'' consult, rather than ``should'' consult with ICE.
    USCIS exercises caution whenever it shares information protected 
under 8 U.S.C. 1367 with ICE HSI, and evaluates all relevant 
circumstances in deciding whether to share such information, including 
whether there is a legitimate Department purpose for sharing. ICE HSI 
is equally bound by the confidentiality protections of 8 U.S.C. 
1367(a)(2), including whether a person is represented by an attorney or 
accredited representative.

W. Fees

    Comment: Commenters stated that T visa applicants incur significant 
fees in filing related forms and that access to fee waivers is crucial. 
Some commenters noted that detained trafficking survivors do not have 
funds to pay filing fees or provide documentation of their financial 
circumstances. They asked DHS to simplify and streamline the fee waiver 
request process and consider ``any credible evidence'' in adjudicating 
fee waiver requests. Other commenters requested that DHS extend the fee 
exemption to all ancillary applications related to the application for 
T nonimmigrant status to include motions and appeals. A few commenters 
noted that DHS has eliminated many of the fees associated with applying 
for T nonimmigrant status in recognition of the challenges victims of a 
severe form of trafficking in persons and their family members may face 
in bearing these costs. Commenters asked that DHS extend the fee 
exemptions to applications for employment authorization filed by 
eligible family members in 8 CFR 214.11(k)(10) (redesignated here as 8 
CFR 214.211(i)(3)). They proposed that, at a minimum, the rule clarify 
that family members seeking employment authorization can submit fee 
waiver requests instead of associated fees. Other commenters requested 
DHS require that all fee waiver requests be processed within 30 days of 
receipt.
    Response: DHS recognizes the challenges faced by trafficking 
victims and their family members, including the costs of submitting 
applications associated with T nonimmigrant status. DHS appreciates the 
importance of the fee waiver process and takes note of the commenters' 
concerns. On January 31, 2024, USCIS published a Final Rule (Fee Rule) 
to adjust certain immigration and naturalization benefit request 
fees.\38\ That rule codified 8 CFR 106.3(b)(2) which exempts persons 
seeking or granted T nonimmigrant status from the fees for several 
different USCIS forms. As a result, T nonimmigrants, T nonimmigrant 
applicants, and their derivatives will generally pay no USCIS fees 
until they apply for naturalization, at which time they may request a 
fee waiver or a reduced fee.
---------------------------------------------------------------------------

    \38\ U.S. Citizenship and Immigration Services Fee Schedule and 
Changes to Certain Other Immigration Benefit Request Requirements, 
89 FR 6194 (Jan. 31, 2024).
---------------------------------------------------------------------------

    Comment: Commenters also requested a presumption in favor of 
granting fee waivers submitted in association with a T visa application 
or if the applicant is detained by DHS, in the absence of specific and 
exceptional circumstances.
    Response: Persons seeking or granted T nonimmigrant status are 
exempt from paying fees for all related forms through adjustment of 
status. 8 CFR 106.3(b)(2). As a result, T nonimmigrants, T nonimmigrant 
applicants, and their derivatives will not be required to request a fee 
waiver until they file Form N-400, Application for Naturalization.\39\
---------------------------------------------------------------------------

    \39\ DHS published multiple new fee exemptions for T 
nonimmigrants as part of a comprehensive adjustment to all USCIS 
fees. See, e.g., 89 FR 6392.
---------------------------------------------------------------------------

X. Restrictions on Use and Disclosure of Information Relating to T 
Nonimmigrant Status

    Comment: Commenters expressed support for DHS including the 
reference at 8 CFR 214.11(p) (redesignated as 8 CFR 214.216) in 
confidentiality provisions and exceptions that specifically apply to 
human trafficking survivors under 8 U.S.C. 1367(a)(2) and (b). One 
commenter acknowledged DHS's rationale for not including the entire 
list of exceptions to the restrictions included in 8 U.S.C. 1367(b) but 
requested that DHS add language to the provision that would highlight 
the exceptions on disclosure for law enforcement or national security 
purposes. The commenter wrote that including these specific examples 
would help victims make an informed decision of whether to apply for T 
nonimmigrant status.
    Response: DHS recognizes the importance of ensuring that applicants 
are fully informed of the consequences of applying for immigration 
benefits. Nevertheless, DHS may share the information with other 
Federal, State, and local government agencies and other authorized 
organizations. See 5 U.S.C. 552a. DHS regulations already discuss the 
reasons an applicant's information may be released. See 6 CFR part 5, 
subpart B. In addition, the Form I-914, Application for T Nonimmigrant 
Status, Instructions clearly state that the information provided may 
also be made available as appropriate for law enforcement purposes or 
in the interest of national security as permitted by 8 U.S.C. 1367. 
Therefore, DHS made no changes in the final rule in response to this 
comment.
    Comment: One commenter requested DHS add to the regulation that 
upon denial of an application, USCIS will inform an applicant that 
their privacy protections are void per 8 U.S.C. 1367 and will state the 
parties with whom the applicant's information may be shared.
    Response: DHS declines to adopt this recommendation because 
protections

[[Page 34891]]

under 8 U.S.C. 1367(a)(2) only end when ``the application for relief is 
denied and all opportunities for appeal of the denial have been 
exhausted.'' 8 U.S.C. 1367(a)(2). Therefore, including such a 
notification in the denial notice would be premature.

Y. Public Comment and Responses on Statutory and Regulatory 
Requirements

    Comment: Some commenters cited statistics on the number and 
demographics of trafficked victims within the United States. One 
commenter cited a survey entitled, ``YES Project; Youth Experiences 
Survey: Exploring the Sex Trafficking Experiences of Arizona's Homeless 
and Runaway Young Adults,'' conducted by Arizona State University (ASU) 
School of Social Work in 2014. The results of the survey found that 25 
percent of the 246 homeless youth who were surveyed reported being 
victims of trafficking. Additionally, the commenter cited that the 
average age of entry to sex trafficking is 14 years old. Another 
commenter provided data on the total number of human trafficking 
victims (20.9 million people) as published in a U.S. News and World 
Reports opinion editorial.
    Response: DHS appreciates the commenters' responses and has 
reviewed the cited data provided by commenters. Although DHS recognizes 
that the cited data supports the goals of this rule, DHS cannot confirm 
or deny the data with reliable accuracy and, therefore, does not use it 
in its analysis. The sampling frame of the YES Project survey included 
246 homeless youth who received services from three Arizona-based young 
adult serving organizations.\40\ Because the survey sampled only a 
small number of homeless youth and a small number of Arizona youth-
based programs, DHS did not feel it was appropriate to make any general 
conclusions from such data.
---------------------------------------------------------------------------

    \40\ Dominique Roe-Sepowitz, and Kristen Bracy, ``YES Project; 
Youth Experiences Survey: Exploring the Sex Trafficking Experiences 
of Arizona's Homeless and Runaway Young Adults.'' Office of Sex 
Trafficking Intervention Research (2014): ASU School of Social Work, 
https://www.trustaz.org/downloads/rr-stir-youth-experiences-survey-report-nov-2014.pdf. (Nov. 2014).
---------------------------------------------------------------------------

Z. Biometrics

    Comment: One commenter encouraged USCIS to accept biometrics taken 
by ICE rather than require a detained applicant to submit their 
biometrics at a USCIS Application Support Center.
    Response: DHS appreciates the commenter's goal of increasing 
efficiency. USCIS is examining whether it has the legal authority and 
technical capability to submit to the Federal Bureau of Investigation 
biometrics collected by a criminal justice agency or from a non-
criminal justice agency when the biometrics were collected for a 
different purpose from USCIS' purpose of use. DHS will continue to 
explore the feasibility of permitting USCIS to use biometrics collected 
by ICE for adjudication of applications for T nonimmigrant status from 
detained individuals, but declines to codify any changes at this time.

AA. Trafficking Screening, Training, and Guidance

1. Screening
    Comment: One commenter requested that the regulation require DHS to 
conduct screening for trafficking victims by all levels of DHS, at each 
stage of the immigration process; require ICE to screen all detained 
individuals and provide release on bond or parole for anyone identified 
as a trafficking victim; and require OPLA attorneys to screen for 
trafficking both before issuing NTAs as well as for each case they 
prosecute. The commenter also stated that if an NTA has already been 
issued, the regulation should require that the ICE attorney immediately 
notify the court and opposing counsel (or, in absence of counsel, the 
Respondent), request a continuance or administrative closure, and refer 
the victim for trafficking support services and investigation.
    Response: DHS appreciates the commenter's recommendation regarding 
screening efforts to protect victims of trafficking. In response to the 
White House National Action Plan to Combat Human Trafficking, there is 
a government-wide effort to update screening forms and protocols for 
all Federal officials who have the potential to encounter a human 
trafficking victim in the course of their regular duties that do not 
otherwise pertain to human trafficking. In support of this priority 
action, DHS co-chairs the interagency working group to document 
promising practices and identify opportunities to strengthen current 
efforts to screen for victims of human trafficking.\41\ DHS declines to 
impose anything further via regulation at this time, as DHS believes 
these actions address the commenter's concerns.
---------------------------------------------------------------------------

    \41\ ``DHS Strategy,'' https://www.dhs.gov/sites/default/files/publications/20_0115_plcy_human-trafficking-forced-labor-child-exploit-strategy.pdf.
---------------------------------------------------------------------------

2. Training
    Comment: Several commenters requested DHS provide additional 
resources, support, and training to LEAs to help them understanding the 
nuances of trafficking. Specifically, they stated that LEAs should be 
trained to recognize the co-existence of trafficking and domestic 
violence. The commenters encouraged DHS to release a Law Enforcement 
Declaration Guide. They also suggested that DOJ's Office on Violence 
Against Women (OVW) should provide training, not DHS.
    Response: DHS is committed to providing training and support to 
certifying officials and stakeholders on trafficking and the T visa 
program. As discussed extensively above, DHS acknowledges that domestic 
violence and trafficking may coexist, and has provided significant 
guidance in the Policy Manual to reflect this.
    On October 20, 2021, USCIS published the first ever standalone T 
Visa Law Enforcement Resource Guide for certifying officials,\42\ which 
clarifies the role and responsibility of certifying agencies in the T 
visa program, provides certifying officials with best practices for 
approaching the T visa certification process, and emphasizes that 
completing the declaration is consistent with a victim-centered 
approach. In addition, OVW provides leadership in developing the 
national capacity to ``reduce violence against women and administer 
justice for and strengthen services to victims of domestic violence, 
dating violence, sexual assault, and stalking.'' \43\ OVW also supports 
the provision of training and technical assistance to assist service 
providers and the anti-trafficking field in ensuring successful for 
survivors of trafficking.\44\
---------------------------------------------------------------------------

    \42\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland 
Security, ``T Visa Law Enforcement Resource Guide'' (2021), https://www.uscis.gov/sites/default/files/document/guides/T-Visa-Law-Enforcement-Resource-Guide.pdf.
    \43\ Office on Violence Against Women, U.S. Dep't of Justice, 
https://www.justice.gov/ovw (last visited Apr. 4, 2023).
    \44\ See, e.g., Office on Violence Against Women, U.S. Dep't of 
Justice, ``OVW Fiscal Year 2022 Training and Technical Assistance 
Initiative Solicitation'' (2022), https://www.justice.gov/ovw/page/file/1484676/download.
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    As DHS is responsible for adjudicating T visas, and encounters 
trafficking victims in various ways, it is imperative DHS continues to 
train certifying officials and others about trafficking and the T visa.
3. Guidance
    Comment: Several commenters requested DHS issue policy guidance to 
LEAs on referring potential victims to local nongovernmental 
organizations for assistance to identify, support, and protect 
trafficking victims.
    Response: DHS already works with local governments and NGOs to 
assist

[[Page 34892]]

trafficking victims and it is not necessary to address those efforts 
and guidance in this rule. DHS will consider this comment in future 
policy-making efforts.

BB. Miscellaneous Comments

1. Cases Involving Multiple Victims
    Comment: One commenter requested DHS recognize the complexity and 
special nature of cases of groups of trafficking victims in an active 
and ongoing law enforcement investigation. Specifically, the commenter 
requested DHS create a mechanism to identify cases with multiple 
victims and to coordinate a streamlined evaluation of these victims' 
applications.
    Response: DHS declines to adopt this recommendation, as each 
applicant is required to meet their own individual burden of proof, and 
each case is evaluated based on the evidence presented in that specific 
application. USCIS adjudicates each case on its own merits and declines 
to create processes to handle cases as a group. DHS thinks a group 
application process would be particularly difficult to administer 
considering the confidentiality protections each member of the group 
would have as required by 8 U.S.C. 1367.
2. Social Security Cards
    Comment: Another commenter requested that DHS revise the Form I-914 
and Form I-914, Supplement A, Application for Family Member of T-1 
Recipient, to include a checkbox for applicants to indicate they wish 
to receive a Social Security card, similar to the checkbox for 
applicants to indicate they wish to receive an Employment Authorization 
Document (EAD). The commenter stated that it would allow trafficking 
survivors to obtain their Social Security cards in a more streamlined 
manner, and this would allow individuals to more easily access 
important services needed for emotional and financial stability.
    Response: DHS acknowledges the concerns of the commenter regarding 
delays in victims obtaining benefits and appreciates there are 
significant benefits and efficiencies that could be achieved through 
this change; however, DHS declines to adopt this recommendation in this 
final rule. The Social Security Administration (SSA) issues Social 
Security cards, whereas USCIS issues EADs. Implementing this suggestion 
would require specific coordination with SSA, as well as updating USCIS 
systems. At this time, DHS does not have the required infrastructure or 
resources to adopt this recommendation. Moreover, rulemaking would not 
be required to implement this recommendation when the capabilities are 
in place. Therefore, DHS will keep this suggestion under consideration 
for possible, future form revision efforts and interagency 
coordination.
3. Victim-Blaming
    Comment: One commenter stated that USCIS routinely blames the 
victim and says in RFE and denial notices that individuals who 
knowingly undertook the dangerous journey to the United States should 
have expected to experience forced labor or rape. The commenter wrote 
that blaming the victim should not be allowed by regulation and this 
language should be prohibited from RFEs.
    Response: DHS appreciates the commenter's concern and has taken 
these comments into consideration. DHS has implemented a victim-
centered approach, which is evident in the language of the regulation. 
Moreover, adjudicators are specifically trained to write RFEs in a 
manner that does not revictimize applicants. Officers regularly receive 
supervisory guidance. USCIS conducts ongoing training to adjudicators, 
and routinely evaluates trends that may require additional training or 
recalibration of procedures. As part of this rulemaking, USCIS is also 
updating related policy guidance on issuance of RFEs and the victim-
centered approach. However, DHS declines to adopt the recommendation of 
including specific language in the regulation about what should be 
included in RFEs. General guidelines on the contents of official 
correspondence are more appropriately suited for policy guidance, and 
DHS feels that prohibiting specific language could unnecessarily 
restrict discretion to address case-specific circumstances.
4. Processing Times
    Comment: One commenter stated that the new regulations should 
indicate that any case pending for more than 90 days should be 
considered to be outside an acceptable processing time, to allow 
attorneys to sue USCIS more easily when it unnecessarily delays 
adjudication of T visas. The commenter wrote that survivors need status 
and adjudication quickly.
    Response: DHS understands and is sympathetic to the commenter's 
concern about survivors receiving status as quickly as possible and 
their frustrations with processing times but declines to implement an 
``acceptable processing time'' due to various factors, including USCIS 
resource constraints. Each case presents a different set of facts that 
require highly technical analysis, and processing times may differ 
between cases. Some cases, due to circumstances outside of DHS's 
control, may not be able to be adjudicated within such a prescribed 
timeframe. DHS also notes the new BFD provisions address this concern, 
as their goal is to help stabilize bona fide applicants faster.
5. Motions To Reopen and Reconsider
    Comment: One commenter stated that there is a lack of clarity in 
the regulations as to whether a Motion to Reopen and Reconsider filed 
by a T visa principal extends to their derivatives' applications. The 
commenter stated that their clients who were derivatives received NTAs 
related to denied T visa applications, although the associated T 
principal applicant had submitted a timely Motion to Reopen and 
Reconsider. This would indicate that a separate Motion to Reopen and 
Reconsider should be filed for each individual derivative application, 
despite the fact that this would be duplicative, and the T-1 
application is the decisive factor in the adjudication of the 
derivative applications. The commenter recommended revising the 
regulation to state that a denial would not become final for the 
applicant or their derivatives until the administrative appeal is 
decided.
    Response: DHS declines to adopt this recommendation. Each denied 
application, Forms I-914 and I-914A, requires a separately filed Form 
I-290B, Notice of Appeal or Motion as a Form I-290B cannot be filed for 
multiple receipts or filings. DHS emphasizes that in cases where an 
appeal of a T-1 application denial has been filed, the case is 
considered to remain administratively pending until a decision on 
appeal is made. If an applicant files an appeal for a denied Form I-
914A, then that application would also be considered administratively 
pending until a final decision is rendered by the Administrative 
Appeals Office (AAO). A decision on appeal is then considered to be 
administratively final even if a subsequent motion is filed. 8 CFR 
214.11(d)(10) (redesignated as 8 CFR 214.204(q)). In this case, an 
administratively final decision occurs when the AAO issues a decision 
affirming the denial of the Form I-914. The filing of an appeal of the 
Form I-914 denial would affect its own administratively pending status 
and not automatically place any denied Form I-914As in a pending 
status.

[[Page 34893]]

6. HHS Notification
    Comment: Other commenters requested that USCIS notify HHS of any 
applicant on the waiting list.
    Response: DHS declines to adopt this recommendation. Such inter-
agency communications are generally not appropriate to be mandated in 
the Code of Federal Regulations. In addition, given the confidentiality 
protections and sensitive nature of T applications, DHS wishes to avoid 
mandating any communications that are not required by statute.
7. Program Integrity
    Comment: One commenter expressed concern about oversight in the T 
visa program. They expressed concern that victims could cause harm to 
themselves and American society. The commenter wondered about vetting 
and expressed concern about exploitation of loopholes. The commenter 
also stated that Americans should be receiving the same type of or 
superior benefits first.
    Response: DHS acknowledges the commenter's concerns; however, DHS 
implements the T visa program as authorized by Congress. Adjudicators 
evaluate each application on its own merits. DHS remains committed to 
the fair and just adjudication of all immigration benefit requests. At 
the same time, DHS vets all immigration benefit requests to ensure they 
are granted only to those who have established eligibility. This 
requires DHS to ensure that applicants do not obtain benefits for which 
they are not eligible under the law.
8. Annual Cap
    Commenter: One commenter stated that the annual cap on T visas is 
inconsistent with Congress' intent when creating T nonimmigrant status 
relief. They stated DHS should provide comprehensive data about T visa 
application trends, and other information as necessary, to support any 
Congressional efforts to eliminate the T visa cap.
    Response: DHS provides comprehensive data on the characteristics of 
T visa applications, and regularly posts quarterly updates on the 
number of applications received, approved, denied, and pending by 
fiscal year.\45\ In addition, DHS is responsive to Congressional and 
stakeholder inquiries on T visa filing trends, including questions and 
concerns about the cap.
---------------------------------------------------------------------------

    \45\ See U.S. Citizenship and Immig. Servs., U.S. Dep't of 
Homeland Security, ``Characteristics of T Nonimmigrant Status (T 
Visa) Applicants Fact Sheet'' (2022), https://www.uscis.gov/sites/default/files/document/fact-sheets/Characteristics_of_T_Nonimmigrant_Status_TVisa_Applicants_FactSheet.pdf; U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland 
Security, ``Characteristics of T Nonimmigrant Status (T Visa) 
Applicants Fact Sheet'' (2023), https://www.uscis.gov/sites/default/files/document/fact-sheets/Characteristics_of_T_Nonimmigrant_Status_TVisa_Applicants_FactSheet_FY08_FY22.pdf; U.S. Citizenship and Immigr. Servs., U.S. Dep't of 
Homeland Security, ``Immigration and Citizenship Data,'' https://www.uscis.gov/tools/reports-and-studies/immigration-and-citizenship-data (last visited Feb. 15, 2023).
---------------------------------------------------------------------------

9. Continued Presence Adjudication
    Comment: Another commenter encouraged DHS to ensure Continued 
Presence (CP) benefits are not arbitrarily adjudicated or delayed. They 
suggested DHS create regulations on CP that: direct DHS to grant CP 
within 60 days of receiving a credible report of human trafficking; 
detail a uniform, fair, and timely process for granting or denying CP, 
with a focus on providing the maximum protections envisioned by 
Congress; and to the extent possible under legislation, allow DHS to 
receive CP requests from any law enforcement agency.
    Response: DHS appreciates the commenter's concerns but declines to 
address them in this rulemaking effort, particularly because CP was not 
included in the IFR. The CCHT, which processes all requests for CP, 
implements a victim-centered approach. DHS declines to impose a 
deadline on adjudicating CP, given shifting priorities and resource 
allocations. CP may already be requested by any LEA with the authority 
to investigate or prosecute human trafficking, including local law 
enforcement.\46\
---------------------------------------------------------------------------

    \46\ See Center for Countering Human Trafficking, U.S. Dep't of 
Homeland Security, ``Continued Presence Resource Guide'' (2023), 
https://www.ice.gov/doclib/human-trafficking/ccht/continuedPresenceToolkit.pdf.
---------------------------------------------------------------------------

10. Comment Period
    Comment: One commenter requested that DHS and other agencies allow 
60 days for comment on proposed regulations. The commenter also 
requested that DHS establish a regular schedule for updating 
regulations when statutory changes are made in order to reflect 
legislative changes.
    Response: DHS generally publishes proposed rules for 60 days of 
public comments as provided in section 6.(a)(1) of Executive Order 
12866, Regulatory Planning and Review, unless exigent circumstances 
justify a 30-day comment period as permitted by 5 U.S.C. 553. DHS also 
published regulations as soon as practicable after new legislation is 
passed that requires a change in the applicable regulations. This 
comment requires no change to the final rule.
CC. Out of Scope Comments
    Several comments were submitted that did not relate to the 
substance of the Final Rule. One commenter provided a list of general 
criticisms of USCIS in general and its administration of the T 
nonimmigrant program as follows:
     USCIS generally ignores expedite requests.
     USCIS regularly dismisses labor trafficking, particularly 
of men, as ``mere exploitation'' without defining what the difference 
between that and trafficking may be.
     USCIS uses boilerplate RFEs and denial letters that are 
victim blaming and dismissive of the survivor's experience.
     USCIS denial notices have stated that less weight would be 
given where an individual initiated therapy after issuance of an RFE, 
even though USCIS made it very difficult for a person to be able to pay 
for therapy, by refusing to review prima facie/bona fides and issue a 
determination that could help the person access services. The commenter 
wrote that this blames the victim for something outside their control.
    Response: DHS acknowledges the commenter's feedback but notes that 
their suggestions are not about and do not affect the substantive 
content of this rulemaking. DHS makes no changes to the final rule in 
response to these comments.

IV. Statutory and Regulatory Requirements

A. Executive Orders 12866, 13563, and 14094

    Executive Orders 12866 (Regulatory Planning and Review), as amended 
by Executive Order 14094 (Modernizing Regulatory 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 costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility.
    The Office of Management and Budget (OMB) has designated this rule 
a ``significant regulatory action'' as defined under section 3(f) of 
E.O. 12866, as amended by Executive Order 14094, but it is not 
significant under section 3(f)(1) because its annual effects on the 
economy do not exceed $200 million in

[[Page 34894]]

any year of the analysis. Accordingly, OMB has reviewed this rule.
1. Summary
    As discussed further in the preamble, this final rule adopts the 
changes from the 2016 interim rule with some modifications. The 
rationale for the 2016 interim rule and the reasoning provided in the 
preamble to the 2016 interim rule remain valid with respect to these 
regulatory amendments, therefore, DHS adopts such reasoning to support 
this final rule. In response to the public comments received on the 
2016 interim rule, DHS has modified some provisions for the final rule. 
DHS has also made some technical changes in the final rule.
    This final rule clarifies some definitions and amends provisions 
regarding bona fide determinations (BFD) to implement a new process. 
This final rule also clarifies evidentiary requirements for hardship, 
codifies the evidentiary standard, and codifies the standard of proof 
that applies to the adjudication of an application for T nonimmigrant 
status. DHS also made technical changes to the organization and 
terminology of 8 CFR part 214.
    For the 10-year period of analysis of the rule using the post-IFR 
baseline of the rule, DHS estimates the annualized costs of this rule 
will be $807,314 annualized at 3- and 7 percent. Table 1 provides a 
more detailed summary of the final rule provisions and their impacts.
BILLING CODE 9111-97-P

[[Page 34895]]

[GRAPHIC] [TIFF OMITTED] TR30AP24.037


[[Page 34896]]


[GRAPHIC] [TIFF OMITTED] TR30AP24.038

    In addition to the impacts summarized above, and as required by OMB 
Circular A-4, Table 2 presents the prepared accounting statement 
showing the costs and benefits to each individual affected by this 
final rule using the post-IFR baseline.\47\
---------------------------------------------------------------------------

    \47\ Office of Mgmt. & Budget, Exec. Office of the President, 
``OMB Circular A-4'' (2003), https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf.

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[[Page 34897]]

[GRAPHIC] [TIFF OMITTED] TR30AP24.039


[[Page 34898]]


    In addition to the impacts summarized above, and as required by OMB 
Circular A-4, table 3 presents the prepared accounting statement 
showing the costs and benefits to each individual affected by this 
final rule using the pre-IFR baseline.\48\
---------------------------------------------------------------------------

    \48\ Office of Mgmt. & Budget, Exec. Office of the President, 
``OMB Circular A-4'' (2003), https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf.

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[[Page 34899]]

[GRAPHIC] [TIFF OMITTED] TR30AP24.040


[[Page 34900]]


[GRAPHIC] [TIFF OMITTED] TR30AP24.041

BILLING CODE 9111-97-C
2. Background and Population
    As stated in the 2016 interim final rule, Congress created T 
nonimmigrant status in the Trafficking Victims Protection Act (TVPA) of 
2000. T nonimmigrant status is available to victims of a severe form of 
trafficking in persons who comply with any reasonable request for 
assistance from law enforcement agencies (LEAs) in investigating or 
prosecuting the perpetrators of these crimes and who meet other 
requirements. T nonimmigrant status provides temporary immigration 
benefits (nonimmigrant status and employment authorization) and the 
ability to adjust to lawful permanent resident status, provided that 
established criteria are met, and a favorable exercise of discretion is 
warranted. Additionally, if a victim of a severe form of trafficking in 
persons obtains T nonimmigrant status, then certain eligible family 
members may also obtain T nonimmigrant status.\49\
---------------------------------------------------------------------------

    \49\ The current T nonimmigrant categories are T-1 (principal 
applicant), T-2 (spouse), T-3 (child), T-4 (parent), T-5 (unmarried 
sibling under 18 years of age); and T-6 (adult or minor child of a 
principal's derivative beneficiary).
---------------------------------------------------------------------------

    Table 4 provides the number of T nonimmigrant application receipts, 
approvals, and denials for principals and derivative family members for 
FY 2017 through FY 2022. Although the maximum annual number of T 
nonimmigrant visas that may be granted is 5,000 for T-1 principal 
applicants per fiscal year \50\ Table 4 shows that based on a 6-year 
annual average, DHS receives 2,889 Form I-914 applications (both Form 
I-914 and I-914 Supplement A) per year.
---------------------------------------------------------------------------

    \50\ There is no statutory cap for grants of derivative T 
nonimmigrant status or visas.
[GRAPHIC] [TIFF OMITTED] TR30AP24.042

    Table 5 shows the number of receipts received with and without Form 
G-28, FY 2017 through FY 2022. Based on a 6-year annual average, DHS 
estimates the annual average receipts to be 2,909 and the annual 
average number of Form G-28 receipts to be 2,673. Based on these 
figures, DHS estimates that 92 percent of Form I-914 receipts are filed 
by applicants represented by an attorney or accredited representative. 
The data in table 4 and table 5 differ due to the dates the data were 
pulled and the different systems from which they were pulled. Both data 
sources are accurate; however, they use different criteria/assumptions 
to extract the results from USCIS sources. Estimates in table 4 are 
based

[[Page 34901]]

on vintage data while results in table 5 continue to fluctuate in real-
time, sometimes even in prior fiscal years, as updates are made in the 
administrative data.
[GRAPHIC] [TIFF OMITTED] TR30AP24.043

    DHS acknowledges that there was a significant increase in receipts 
in FY 2022 as shown in table 4 and table 5. While there was a sharp 
increase in this single year, DHS could not build a forecast solely 
based on the increase during a single year. This analysis uses a 6-year 
annual average as an estimate to calculate the total costs of this 
rule.
    As Graph 1 shows, since FY 2005 there has been a gradual increase 
in receipts until FY 2022. On October 20, 2021, USCIS added 
comprehensive policy guidance on T visas to its Policy Manual.\51\ The 
goal of the Policy Manual Update was to provide consolidated guidance 
as to how USCIS approaches T visa adjudication and interprets 
eligibility criteria. The Policy Manual offers more comprehensive 
guidance than previous USCIS policy sources and provides interpretation 
and examples of previously undefined terms and concepts. This will 
hopefully assist practitioners better identify trafficking survivors 
who are eligible for a T visa. This could be one possible reason that 
there were increased receipts in FY 2022.
---------------------------------------------------------------------------

    \51\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland 
Security, PA-2021-22 Policy Alert, ``T Nonimmigrant Status for 
Victims of Severe Forms of Trafficking in Persons'' (Oct. 20, 2021), 
https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20211020-VictimsOfTrafficking.pdf.

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[[Page 34902]]

[GRAPHIC] [TIFF OMITTED] TR30AP24.044

3. Updates to the Economic Analysis Since the 2016 Interim Rule, Pre-
IFR Baseline
    In this final rule, DHS has updated several definitions to provide 
clarity and ensure consistency with the Trafficking Victims Protection 
Act (TVPA) of 2000. DHS has amended provisions regarding bona fide 
determinations (BFD), which reflect a modified process. This process 
will now allow applicants for T nonimmigrant status to file a Form I-
765, Application for Employment Authorization, concurrently with their 
Form I-914.
    DHS also codified the evidentiary standard and standard of proof 
that apply to the adjudication of a T visa application. For T 
nonimmigrants, this rule retains the standard that applicants may 
submit any credible evidence relating to their T visa applications for 
USCIS to consider. This is presented as a qualitative benefit to both 
USCIS and T nonimmigrant applicants.
    The pre-IFR baseline is shown below with zero costs to the 
government or to the applicants. Because the pre-IFR baseline is 
identical to the post-IFR baseline, consistent with table 7, it is not 
useful to do a complete pre-IFR baseline and the analysis will focus on 
the post-IFR baseline.
    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.\52\ The 2002 interim final rule established the 
eligibility criteria, application process, evidentiary standards, and 
benefits associated with obtaining T nonimmigrant status.
---------------------------------------------------------------------------

    \52\ See 67 FR 4784.
---------------------------------------------------------------------------

    T nonimmigrant status is available to eligible 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 or otherwise meet the statutory criteria. 
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, certain 
eligible family members may also apply to obtain T nonimmigrant 
status.\53\
---------------------------------------------------------------------------

    \53\ The current T nonimmigrant categories are: T-1 (principal 
applicant), T-2 (spouse), T-3 (child), T-4 (parent), and T-5 
(unmarried sibling under 18 years of age). The interim rule created 
a new T nonimmigrant category, T-6 (adult or minor child of a 
principal's derivative).

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[[Page 34903]]

[GRAPHIC] [TIFF OMITTED] TR30AP24.045

    Table 6 provides the number of T nonimmigrant application receipts, 
approvals, and denials for principal victims and derivative family 
members for FY2005 through FY2016. The maximum annual number of T 
nonimmigrant visas that may be granted is 5,000 for T-1 principal 
applicants per fiscal year.
    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 
memoranda to both implement the provisions of the Acts and to ensure 
compliance with the legal requirements of the Acts.\54\
---------------------------------------------------------------------------

    \54\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of 
Homeland Security, ``Trafficking Victims Protection Reauthorization 
Act of 2003,'' (2004); see also U.S. Citizenship and Immigr. Servs., 
U.S. Dep't of Homeland Security, ``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)'' (2010), https://www.uscis.gov/sites/default/files/document/memos/William-Wilberforce-TVPRAct-of-2008-July-212010.pdf; U.S. Citizenship and 
Immigr. Servs., U.S. Dep't of Homeland Security, ``Extension of 
Status for T and U Nonimmigrants; Revisions to Adjudicator's Field 
Manual (AFM) Chapter 39.1(g)(3) and Chapter 39.2(g)(3) (AFM Update 
AD11-28)'' (2011), https://www.uscis.gov/sites/default/files/document/memos/exten.status-tandu-nonimmigrants.pdf; U.S. 
Citizenship and Immigr. Servs., U.S. Dep't of Homeland Security, 
``New T Nonimmigrant Derivative Category and T and U Nonimmigrant 
Adjustment of Status for Applicants from the Commonwealth of the 
Northern Mariana Islands'' (2015), https://www.uscis.gov/sites/default/files/document/memos/2015-0415-TNonimmigrant-TVPRA.pdf.
---------------------------------------------------------------------------

    The 2016 interim final rule codified 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 7, 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 7 
assuming a pre-IFR baseline per OMB Circular A-4 requirements.
BILLING CODE 9111-97-P

[[Page 34904]]

[GRAPHIC] [TIFF OMITTED] TR30AP24.047


[[Page 34905]]


[GRAPHIC] [TIFF OMITTED] TR30AP24.048


[[Page 34906]]


[GRAPHIC] [TIFF OMITTED] TR30AP24.049


[[Page 34907]]


[GRAPHIC] [TIFF OMITTED] TR30AP24.050

BILLING CODE 9111-97-C
    In calculating the additional costs of the increased time burden to 
Form I-765, DHS uses updated wage and fiscal year data. Wages were 
updated according to the occupational data released by the Bureau of 
Labor Statistics (BLS). The 2016 interim rule used 2015 BLS data, and 
now more current data is available from 2022. The 2016 interim rule 
used fiscal year filing data from FY 2005 through FY 2015, and DHS has 
updated this analysis by using filing data from FY 2017 through FY 
2022.
    DHS is increasing the time burden for Form I-765 by 4 minutes from 
4 hours and 30 minutes (4.5 hours) per response to 4 hours and 34 
minutes (4.56 hours) to reflect the current Form I-765 estimated time 
burden. DHS is clarifying the Form I-765 instructions, increasing the 
time burden of the form, which includes the time for reviewing 
instructions, gathering the required documentation, and completing and 
submitting the request.

[[Page 34908]]

4. Costs, and Benefits of the Final Rule
(a) Bona Fide Determination Process
    Although an extensive BFD process was codified in the 2016 IFR, 
such a process has not been consistently implemented in the last decade 
outside of litigation cases due to resource constraints. After this 
rule takes effect, on a routine basis USCIS will review an applicant's 
filing for completeness and conduct background checks to determine if 
the application is bona fide. If an applicant has not already filed a 
Form I-765, they will be notified that they may do so. Adjudicators 
will then consider whether an applicant warrants deferred action as a 
matter of discretion. This process will benefit the applicants with 
bona fide filings, as they will be invited to apply for an EAD when 
they receive their bona fide determination letter. Applicants may also 
choose to apply for an EAD at the same time they submit their Form I-
914. USCIS plans to implement a process concurrently with this rule 
(see new 8 CFR 214.205 on the Bona Fide Determination Process) taking 
effect under which future applicants may file Form I-765 at the same 
time as their Form I-914. This will benefit the applicants because they 
will be more likely to apply for an EAD simultaneously and therefore be 
eligible to work sooner than they would have previously. This 
concurrent Form I-765 policy could be paused if, in the future, USCIS 
is able to process Form I-914 from intake to approval within a time 
frame that obviates the need for employment while the application is 
being adjudicated.
    USCIS estimates that 100 percent of applicants will file Form I-765 
concurrently with their Form I-914, so they may receive employment 
authorization quickly if USCIS determines that their T visa application 
is bona fide, that they warrant a favorable exercise of discretion to 
be granted deferred action, and that they warrant a discretionary grant 
of employment authorization, rather than waiting for USCIS to make a 
bona fide determination and inviting them to submit a Form I-765. DHS 
does not expect material impacts to the U.S. labor market from this 
final rule. DHS believes these impacts would accrue as benefits to the 
T visa applicants who apply for an EAD and their families.
    Table 8 shows that the average adjudication timeframe from FY 2017 
through 2022 was around 458 days from the time an applicant submits 
their T visa application, to the time they receive a final decision. 
The goal of this rule is that all applicants will apply for their BFD-
based EAD at the same time they apply for their T visa. This will allow 
the applicants with bona fide filings to begin working earlier than 
they would have previously. DHS uses the 6-year annual average because 
it typically takes 1.25 years \55\ for an adjudicative decision.\56\
---------------------------------------------------------------------------

    \55\ Calculation: 458 days/365 days in a year = 1.25 years.
    \56\ This analysis also assumes that the adjudication timeframe 
for Form I-914 will continue to require several months for the 
foreseeable future and thus not remove the incentive for 
simultaneous filing of Form I-765 that the faster EAD provides.
[GRAPHIC] [TIFF OMITTED] TR30AP24.051

    This new process would not add a large cost to the government 
because the process has been in place since 2002, when USCIS began 
adjudicating Form I-914. However, this change could add additional time 
to review cases. DHS cannot estimate how many additional applications 
would take additional time to review. DHS anticipates any particular 
case requiring additional time should not take more than an additional 
15 to 30 minutes. This additional time will be a cost to USCIS.
    As a part of the BFD process, if the statutory cap prevents further 
grants of T-1 nonimmigrant status, all BFD recipients will be placed on 
a waiting list. USCIS is unable to determine if, when, or for what 
duration T visa approvals will grow to exceed the annual statutory cap, 
but recent volumes depicted in Chart 1 suggest this occurrence is 
possible in the future. Past growth in the number of T visa approvals 
alone is not indicative of continued growth. While DOJ's Bureau of 
Justice Statistics collects data and reports statistics on human 
trafficking, they do not forecast trends.\57\ Consequently, DHS cannot 
predict the contribution of growing T visa awareness to future volumes. 
The placement of individuals on the waiting list results in nominal 
cost to USCIS, as BFD recipients are simply moved to the waiting list 
once the cap is reached. In addition, applicants with a favorable BFD 
may be considered for deferred action and may request employment 
authorization based on a grant of deferred action. This change will 
benefit

[[Page 34909]]

applicants because if they are unable to be approved for a T visa they 
may now receive deferred action and have the possibility to request 
employment authorization, allowing them to stay and lawfully work in 
the United States.
---------------------------------------------------------------------------

    \57\ See Bureau of Justice Statistics, U.S. Dep't of Justice, 
``Human Trafficking Data Collection Activities, 2022,'' https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/htdca22.pdf 
(last visited Sept. 27, 2023).
---------------------------------------------------------------------------

(b) Additional Time Burden for Form I-765
    The revised BFD process allows T visa applicants the opportunity to 
apply for their BFD EAD concurrently with their T visa application. 
Under the revised BFD process, USCIS will review an applicant's file 
for completeness and complete background checks to determine if the 
applicant is bona fide. If an applicant has not already filed a Form I-
765, they will be invited to do so. T visa applicants did not 
previously file Form I-765 for employment authorization incident to T 
nonimmigrant status. DHS estimates that all T-1 visa applicants will 
now apply for a BFD-based EAD with their T visa application. Although 
T-1 visa applicants pay no fee to file Form I-765, DHS estimates the 
current public reporting time burden is 4 hours and 30 minutes (4.5 
hours) for paper submissions, which includes the time for reviewing 
instructions, gathering the required documentation and information, 
completing the application, preparing statements, attaching necessary 
documentation, and submitting the application.\58\ DHS acknowledges 
that T visa applicants filing Form I-765 may elect to acquire legal 
representation.
---------------------------------------------------------------------------

    \58\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of 
Homeland Security, Instructions for Application for T Nonimmigrant 
Status (Form I-914), OMB No. 1615-0020 (expires Dec. 31, 2023) 
https://www.uscis.gov/sites/default/files/document/forms/i-914instr.pdf (time burden estimate in the Paperwork Reduction Act 
section).
---------------------------------------------------------------------------

    Table 9 shows the total receipts received for Form I-914 for FY 
2017 through FY 2022. The table also shows the number of Form I-914 
receipts filed with an attorney or accredited representative using Form 
G-28. The number of Form G-28 submissions allows USCIS to estimate the 
number of Forms I-765 that are filed by an attorney or accredited 
representative and thus estimate the opportunity costs of time for an 
applicant, attorney, or accredited representative to file each form. 
Based on a 6-year annual average, DHS estimates the annual average 
receipts of Form I-765 to be 2,909, with 92 percent of applications 
filed by an attorney.
[GRAPHIC] [TIFF OMITTED] TR30AP24.052

    Table 10 shows the total receipts received for Form I-914 for FY 
2017 through FY 2022 for only the T-1 classification. The table also 
shows the number of Form I-914 receipts filed with an attorney or 
accredited representative using Form G-28. The number of Form G-28 
submissions allows USCIS to estimate the number of Form I-765 that are 
filed by an attorney or accredited representative and thus estimate the 
opportunity costs of time for an applicant, attorney, or accredited 
representative to file each form. Based on a 6-year annual average, DHS 
estimates the annual average receipts of Form I-765 to be 1,664, with 
92 percent of applications filed by an attorney.

[[Page 34910]]

[GRAPHIC] [TIFF OMITTED] TR30AP24.053

    In order to estimate the opportunity costs of time for completing 
and filing Form I-765, DHS assumes that an applicant will use an 
attorney or accredited representative to prepare Form I-765s or will 
prepare Form I-765 themselves. DHS estimates the opportunity cost of 
time for attorneys or accredited representatives using an average 
hourly wage rate of $78.74 for lawyers to estimate the opportunity cost 
of the time for preparing and submitting Form I-765.\59\
---------------------------------------------------------------------------

    \59\ See Bureau of Labor Stat., U.S. Dep't of Labor, 
``Occupational Employment Statistics, May 2022, Lawyers,'' https://www.bls.gov/oes/2022/may/oes231011.htm (last visited May. 11, 2023).
---------------------------------------------------------------------------

    However, average hourly wage rates do not account for worker 
benefits such as paid leave, insurance, and retirement. DHS accounts 
for worker benefits when estimating the opportunity cost of time by 
calculating a benefits-to-wage multiplier using a Department of Labor 
(DOL), Bureau of Labor Statistics (BLS) report detailing average 
compensation for all civilian workers in major occupational groups and 
industries. DHS estimates the benefits-to-wage multiplier is 1.45.\60\ 
DHS calculates the average total rate of compensation as 114.17 \61\ 
per hour for a lawyer.
---------------------------------------------------------------------------

    \60\ The benefits-to-wage multiplier is calculated as follows: 
(Total Employee Compensation per hour)/(Wages and Salaries per hour) 
($42.48 Total Employee Compensation per hour)/($29.32 Wages and 
Salaries per hour) = 1.44884 = 1.45 (rounded). See Bureau of Labor 
Stat., U.S. Dep't of Labor, Economic News Release, ``Employer Costs 
for Employee Compensation--December 2022,'' ``Table 1. Employer 
Costs for Employee Compensation by ownership [Dec. 2022],'' https://www.bls.gov/news.release/archives/ecec_03172023.htm (last updated 
Mar. 17, 2023). The Employer Costs for Employee Compensation 
measures the average cost to employers for wages and salaries and 
benefits per employee hour worked.
    \61\ Calculation: $78.74 * 1.45 = $114.17 total wage rate for 
lawyer.
---------------------------------------------------------------------------

    To estimate the new opportunity costs of time, USCIS uses an 
average total rate of compensation based on the effective minimum wage. 
DHS assumes that T visa applicants have limited work experience/
education and would therefore have lower wages. The Federal minimum 
wage is currently $7.25 per hour,\62\ but many states have implemented 
higher minimum wage rates.\63\ However, the Federal Government does not 
track a nationwide population-weighted minimum wage estimate. 
Individuals in the population of interest for an analysis could be 
located anywhere within the United States and may be subject to a range 
of minimum wage rates depending on the state or city in which they 
live.
---------------------------------------------------------------------------

    \62\ See U.S. Dep't of Labor, ``Minimum Wage,'' https://www.dol.gov/general/topic/wages/minimumwage (last visited May 17, 
2023).
    \63\ See U.S. Dep't of Labor, ``State Minimum Wage Laws,'' 
https://www.dol.gov/agencies/whd/minimum-wage/state (last visited 
May 17, 2023).
---------------------------------------------------------------------------

    For this final rule, DHS uses the most recent wage data from DOL, 
BLS National Occupational Employment and Wage Estimates. More 
specifically, we use the 10th percentile hourly wage estimate for all 
occupations as a reasonable proxy for the effective minimum wage when 
estimating the opportunity cost of time for individuals in populations 
of interest who are likely to earn an entry-level wage.\64\ We also use 
the 10th percentile hourly wage estimate for individuals who are 
unemployed, or for individuals who cannot, or choose not to, 
participate in the labor market as these individuals incur opportunity 
costs, assign valuation in deciding how to allocate their time, or 
both.
---------------------------------------------------------------------------

    \64\ See Bureau of Labor Stat., U.S. Dep't of Labor, 
``Occupational Employment Statistics,'' https://www.bls.gov/oes/2022/may/oes_nat.htm#00-0000 (last visited May 15, 2023). The 10th, 
25th, 75th and 90th percentile wages are available in the 
downloadable XLS file link.
---------------------------------------------------------------------------

    Due to the wide variety of unpaid activities an individual could 
pursue, such as childcare, housework, or other activities without paid 
compensation, it is difficult to estimate the value of that time. Even 
when an individual is not working for wages, their time has value. In 
addition, using a percentile of the hourly wage estimate for all 
occupations allows DHS the flexibility to adjust its estimates, when 
necessary, depending on the population(s) of interest for regulatory 
impact analyses. Moreover, BLS estimates account for changes in wages 
across the United States labor market, which includes any future 
changes to state minimum wage rates. DHS will continue to evaluate the 
most appropriate wage assumptions for the populations of interest in 
its regulatory impact analyses.
    The 10th percentile hourly wage estimate for all occupations is 
currently $13.14, not accounting for worker benefits. DHS accounts for 
worker benefits when estimating the opportunity cost of time by 
calculating a benefits-to-wage multiplier. The benefits-to-wage 
multiplier is calculated using the most recent BLS report detailing 
average total employee compensation for all civilian U.S. workers.\65\ 
DHS estimates the benefits-to-wage multiplier to be 1.45, which 
incorporates employee wages and salaries and the full cost of benefits,

[[Page 34911]]

such as paid leave, insurance, and retirement.\66\ Therefore, using the 
benefits-to-wage multiplier, DHS calculates the total rate of 
compensation for individuals as $19.05 per hour for this final rule, 
where the 10th percentile hourly wage estimate is $13.14 per hour and 
the average benefits are $5.91 per hour.\67\
---------------------------------------------------------------------------

    \65\ See Bureau of Labor Stat., U.S. Dep't of Labor, Economic 
News Release, ``Employer Costs for Employee Compensation--December 
2022,'' ``Table 1. Employer costs for employer compensation by 
ownership,'' https://www.bls.gov/news.release/archives/ecec_03172023.pdf (last updated Mar. 17, 2023).
    \66\ The benefits-to-wage multiplier is calculated as follows: 
(Total Employee Compensation per hour)/(Wages and Salaries per hour) 
= $42.48/$29.32 = 1.45 (rounded). See Bureau of Labor Stat., U.S. 
Dep't of Labor, Economic News Release, ``Employer Costs for Employee 
Compensation--December 2022,'' ``Table 1. Employer costs for 
employer compensation by ownership,'' https://www.bls.gov/news.release/archives/ecec_03172023.pdf (last updated Mar. 17, 
2023).
    \67\ The calculation of the benefits-weighted 10th percentile 
hourly wage estimate: $13.14 per hour * 1.45 benefits-to-wage 
multiplier = $19.053 = $19.05 (rounded) per hour.
---------------------------------------------------------------------------

    DHS uses the historical Form G-28 filings of 92 percent by 
attorneys or accredited representatives accompanying T visa 
applications as a proxy for how many may accompany Form I-765 
applications. The remaining 8 percent \68\ of T visa applications are 
filed without a Form G-28. DHS estimates that a maximum of 1,528 
applications annually would be filed with a Form G-28 and 136 
applications would be filed by the applicant.
---------------------------------------------------------------------------

    \68\ Calculation: 100 percent--92 percent filing with Form G-28 
= 8 percent only filing Form I-914.
---------------------------------------------------------------------------

    To estimate the opportunity cost of time to file Form I-765, DHS 
applies the newly estimated time burden 4 hours and 34 minutes (4.56 
hours) for to the newly eligible population and compensation rate of 
who may file the form. Therefore, for those newly eligible, as shown in 
table 11, DHS estimates the total annual opportunity cost of time to 
applicants completing and filing Form I-765 applications are estimated 
to be $795,500 for lawyers and estimates the cost to be $11,814 for 
applicants who submit their own application. DHS estimates the total 
additional cost for completing and filing Form I-765 are expected to be 
$807,314 annually.
[GRAPHIC] [TIFF OMITTED] TR30AP24.054

(c) Clarifying Eligibility Requirements To Reduce RFEs
    DHS is codifying the evidentiary standard and standard of proof 
that apply to the adjudication of a T visa. For T nonimmigrants, this 
rule retains the standard that applicants may submit any credible 
evidence relating to their T applications for USCIS to consider. This 
expression in the evidentiary standard and standard of proof could 
affect the number of requests for evidence (RFE) that USCIS must send 
for Form I-914. DHS is also making clarifications to eligibility 
requirements. USCIS estimates that there will be a reduction in RFEs. 
Table 12 shows the total number of requests for evidence (RFE) for FY 
2017 through FY 2022. Based on a 6-year annual average, DHS estimates 
the annual requests for information to be 1,107.
[GRAPHIC] [TIFF OMITTED] TR30AP24.055


[[Page 34912]]


    Based on the additional information expected to be provided with 
the initial Form I-914 filing USCIS estimates that there will be a 
reduction in RFEs. This change will also reduce the burden on 
applicants because they will be better aware of the evidentiary 
requirements from the outset, and they will not have to take the time 
to search for additional information subsequent to the submission of 
their application. DHS cannot estimate the amount of time each 
applicant takes to search for additional information. This would then 
allow the applicant to receive their employment authorization document 
earlier and allow them to work sooner. The reduction in RFEs will also 
save USCIS adjudicators time because they will not have to return to a 
particular application a second time once USCIS receives the additional 
required evidence. This change will make the overall process faster for 
applicants and USCIS.
(d) Technical Changes, Clarifying Definitions, and Other Qualitative 
Impacts in This Final Rules
    The remaining changes in this final rule do not add quantifiable 
implications beyond those already discussed in the 2016 IFR. This rule 
moves the regulations for T nonimmigrant status to a separate subpart 
of 8 CFR part 214 to reduce the length and density of part 214, while 
making it easier to locate specific provisions. In addition to the 
renumbering and redesignating of paragraphs, the rule has reorganized 
and reworded some sections to improve readability, such as in new 8 CFR 
214.204(d)(1) (discussing the law enforcement agency (LEA) declaration) 
and 8 CFR 214.208(e)(1) (discussing the trauma exception to the general 
requirement of compliance with any reasonable law enforcement requests 
for assistance).
    The rule also divides overly long paragraphs into smaller 
provisions to improve the organization and understanding of the 
regulations. The reorganization of the rule does not impact the 
analysis provided in the 2016 IFR. DHS also added clarifying language 
to support current eligibility and application requirements in response 
to public comments. These changes are consistent with the Immigration 
and Nationality Act and the Trafficking Victims Protection Act. The 
primary benefit of these changes is to make it clearer and easier for T 
visa applicants to understand and apply for T nonimmigrant status.
    DHS is also amending 8 CFR 214.11(k) (redesignated here as 8 CFR 
214.211) implementing section 101(a)(15)(T)(ii)(III) of the INA, 8 
U.S.C. 1101(a)(15)(T)(ii)(III), to clarify that, USCIS will evaluate 
any credible evidence demonstrating the derivative applicant's present 
danger of retaliation in cases where the LEA has not investigated the 
acts of trafficking after the applicant reported the crime. This 
revision benefits the applicant, because it provides greater clarity on 
the evidence USCIS will consider in determining their eligibility. The 
``any credible evidence'' standard also encompasses evidence 
originating from a family member's home country; however, DHS has 
clarified that evidence may be from the United States or any country in 
which an eligible family member faces retaliation. 8 CFR 214.211(g). 
This flexibility is shown as an unquantified benefit the applicant to 
provide additional credible evidence in order to establish eligibility.
    DHS has also clarified in the preamble that the ``continued 
victimization'' criteria referenced at 8 CFR 214.207(b)(1) does not 
require that the applicant is currently a ``victim of a severe form of 
trafficking in persons,'' but instead may include ongoing victimization 
that directly results from either ongoing or past trafficking. This 
will allow applicants who were victims of a severe form of trafficking 
in persons in the past, departed the United States, and reentered as a 
result of their continued victimization to establish that they meet the 
physical presence eligibility requirement without demonstrating that 
they are currently victims of a severe form of trafficking in persons. 
DHS cannot estimate how many victims may now be able to establish that 
they meet the physical presence eligibility requirement due to this 
change. This clarification benefits applicants who may be able to 
satisfy the physical presence requirement if their reentry into the 
United States was the result of continued victimization tied to ongoing 
or past trafficking.
(e) Alternatives Considered
    Where possible, DHS has considered, and incorporated alternatives 
to maximize net benefits under the rule. For example, DHS considered 
multiple different elements and the operational considerations for 
implementing a BFD review. DHS considered conducting a fully electronic 
T visa BFD review with extremely limited background checks and 
conducting physical file review with limited background checks. 
However, DHS chose an approach that accommodated public comments, 
preserves a good faith review of the initial filing, removes barriers 
to the immigration process, and prioritizes efficient T visa BFD 
review. This protects the integrity of the BFD review by requiring 
review of initial required evidence and assessment of routine 
background checks.
5. Final Costs of the Final Rule
(a) Undiscounted Costs
    Table 13 details the annual costs of this final rule. DHS estimates 
the annual additional cost for completing and filing Form I-765 are 
expected to be $807,314.
[GRAPHIC] [TIFF OMITTED] TR30AP24.056

(b) Discounted Costs
    Table 14 shows the total cost over the 10-year implementation 
period of this final rule. DHS estimates the total annualized costs to 
be $807,314 discounted at 3 and 7 percent.

[[Page 34913]]

[GRAPHIC] [TIFF OMITTED] TR30AP24.057

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, Public Law 104-121, (Mar. 29, 1996), requires Federal agencies to 
consider the potential impact of regulations on small businesses, small 
governmental jurisdictions, and small organizations during the 
development of their rules. The term ``small entities'' comprises small 
businesses, not-for-profit organizations that are independently owned 
and operated and are not dominant in their fields, or governmental 
jurisdictions with populations of less than 50,000. This final rule 
does not mandate any actions or requirements for small entities. This 
final rule regulates individuals and individuals are not defined as a 
``small entities'' by the RFA.\69\ DHS did not receive any comments on 
small entities during the previous comment period. A regulatory 
flexibility analysis is not required when a rule is exempt from notice 
and comment rulemaking. The changes made in the interim rule were 
determined to 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). 81 FR 92288. Therefore, a regulatory flexibility 
analysis is not required for this rule. Nonetheless, USCIS examined the 
impact of this rule on small entities under the Regulatory Flexibility 
Act, 5 U.S.C. 601(6). The individual victims of trafficking and their 
derivative family members to whom this rules applies are not small 
entities as that term is defined in 5 U.S.C. 601(6).
---------------------------------------------------------------------------

    \69\ See Public Law 104-121, tit. II, 110 Stat. 847 (5 U.S.C. 
601 note). A small business is defined as any independently owned 
and operated business not dominant in its field that qualifies as a 
small business per the Small Business Act. See 15 U.S.C. 632(a)(1).
---------------------------------------------------------------------------

C. Small Business Regulatory Enforcement Fairness Act of 1996 
(Congressional Review Act)

    This final rule is not a major rule as defined by section 804 of 
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). 
This final rule likely 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-based 
companies to compete with foreign-based companies in domestic and 
export markets.

D. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among 
other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and tribal governments. Title II of UMRA 
requires each Federal agency to prepare a written statement assessing 
the effects of any Federal mandate in a proposed rule, or final rule 
for which the agency published a proposed rule, that includes any 
Federal mandate that may result in a $100 million or more expenditure 
(adjusted annually for inflation) in any one year by State, local, and 
tribal governments, in the aggregate, or by the private sector. This 
rule is exempt from the written statement requirement because DHS did 
not publish a notice of proposed rulemaking for this rule.
    In addition, the inflation-adjusted value of $100 million in 1995 
is approximately $192 million in 2022 based on the Consumer Price Index 
for All Urban Consumers (CPI-U).\70\ This proposed rule does not 
contain a Federal mandate as the term is defined under UMRA.\71\ The 
requirements of title II of UMRA, therefore, do not apply, and DHS has 
not prepared a statement under UMRA.
---------------------------------------------------------------------------

    \70\ See Bureau of Labor Stat., U.S. Dep't of Labor, 
``Historical Consumer Price Index for All Urban Consumers (CPI-U): 
U.S. city average, all items, by month,'' www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202212.pdf (last visited Jan. 
19, 2023). Calculation of inflation: (1) Calculate the average 
monthly CPI-U for the reference year (1995) and the current year 
(2022); (2) Subtract reference year CPI-U from current year CPI-U; 
(3) Divide the difference of the reference year CPI-U and current 
year CPI-U by the reference year CPI-U; (4) Multiply by 100 = 
[(Average monthly CPI-U for 2022--Average monthly CPI-U for 1995)/
(Average monthly CPI-U for 1995)]*100 = [(292.655-152.383)/
152.383]*100 = (140.272/152.383)*100 = 0.92052263*100 = 92.05 
percent = 92 percent (rounded). Calculation of inflation-adjusted 
value: $100 million in 1995 dollars*1.92 = $192 million in 2022 
dollars.
    \71\ The term ``Federal mandate'' means a Federal 
intergovernmental mandate or a Federal private sector mandate. See 2 
U.S.C. 1502(1), 658(6).
---------------------------------------------------------------------------

E. Congressional Review Act

    The Office of Information and Regulatory Affairs has determined 
that this final rule is not a major rule, as defined by 5 U.S.C. 804, 
for purposes of congressional review of agency rulemaking pursuant to 
the Congressional Review Act, Public Law 104-121, sec. 251, 110 Stat. 
868, 873 (codified at 5 U.S.C. 804). This rule will

[[Page 34914]]

not result in an annual effect on the economy of $100 million or more. 
DHS has complied with the reporting requirements of and has sent this 
final rule to Congress and to the Comptroller General as required by 5 
U.S.C. 801(a)(1). While the Congressional Review Act requires a delay 
in the effective date of 30 days, this rule has a delayed effective 
date of 120 days, to provide DHS time to comply with the Paperwork 
Reduction Act as explained later in this preamble.

F. Executive Order 13132 (Federalism)

    This final 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. DHS does not expect this rule would 
impose substantial direct compliance costs on State and local 
governments or preempt State law. As stated above, neither the proposed 
rule nor this final rule modifies the extent of State involvement set 
by statute.

G. Executive Order 12988 (Civil Justice Reform)

    This final rule meets the applicable standards set forth in section 
3(a) and (b)(2) of E.O. 12988.

H. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    This final rule does not have ``tribal implications'' because it 
does not have substantial direct effects on one or more Indian tribes, 
on the relationship between the Federal Government and Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal Government and Indian tribes. Accordingly, E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments, requires 
no further agency action or analysis.

I. Family Assessment

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any rule that may affect family well-being. 
Agencies must assess whether the regulatory action: (1) impacts the 
stability or safety of the family, particularly in terms of marital 
commitment; (2) impacts the authority of parents in the education, 
nurture, and supervision of their children; (3) helps the family 
perform its functions; (4) affects disposable income or poverty of 
families and children; (5) financially impacts families, and whether 
those impacts are justified; (6) may be carried out by State or local 
government or by the family; and (7) establishes a policy concerning 
the relationship between the behavior and personal responsibility of 
youth and the norms of society. If the determination is affirmative, 
then the agency must prepare an impact assessment to address criteria 
specified in the law. As discussed in the interim final rule, DHS 
assessed this action in accordance with the criteria specified by 
section 654(c)(1). This final rule will continue to enhance family 
well-being by aligning the regulation more closely with the statute. 
This rule will also enhance family well-being by encouraging vulnerable 
individuals who have been victims of a severe form of trafficking in 
persons to report the criminal activity and by providing critical 
assistance and immigration benefits. Additionally, this regulation 
allows certain family members to obtain T nonimmigrant status once the 
principal applicant has received status.

J. National Environmental Policy Act

    DHS analyzes actions to determine whether the National 
Environmental Policy Act (NEPA) applies to them and, if so, what degree 
of analysis is required. DHS Directive 023-01, Revision 01, 
``Implementation of the National Environmental Policy Act,'' and DHS 
Instruction Manual 023-01-001-01, Revision 01, ``Implementation of the 
National Environmental Policy Act (NEPA)'' (Instruction Manual), 
establish the procedures DHS and its components use to comply with NEPA 
and the Council on Environmental Quality (CEQ) regulations for 
implementing NEPA codified at 40 CFR parts 1500 through 1508.
    The CEQ regulations allow Federal agencies to establish, with CEQ 
review and concurrence, categories of actions (``categorical 
exclusions'') that experience has shown do not individually or 
cumulatively have a significant effect on the human environment and, 
therefore, do not require an Environmental Assessment or Environmental 
Impact Statement. 40 CFR 1501.4 and 1507.3(e)(2)(ii). The DHS 
categorical exclusions are listed in Appendix A of the Instruction 
Manual. For an action to be categorically excluded, it must satisfy 
each of the following three conditions: (1) the entire action clearly 
fits within one or more of the categorical exclusions; (2) the action 
is not a piece of a larger action; and (3) no extraordinary 
circumstances exist that demonstrate, or create the potential for, 
significant environmental impacts. Instruction Manual, section 
V.B(2)(a-c).
    This action amends existing regulations governing requirements and 
procedures for victims of severe forms of trafficking in persons 
seeking T Nonimmigrant Status. The amended regulations codify and 
clarify eligibility criteria and will have no impact on the overall 
population of the United States and will not increase the number of 
immigrants allowed into the United States.
    DHS analyzed the proposed amendments and has determined that this 
action clearly fits within categorical exclusion A3(a) in Appendix A of 
the Instruction Manual because the regulations being promulgated are of 
a strictly administrative or procedural nature. DHS has also determined 
that this action clearly fits within categorical exclusion A3(d) 
because it amends existing regulations without changing their 
environmental effect. This final rule is not part of a larger action 
and presents no extraordinary circumstances creating the potential for 
significant environmental effects. Therefore, this final rule is 
categorically excluded from further NEPA review.

K. Paperwork Reduction Act

    Under the Paperwork Reduction Act (PRA) of 1995, as amended, 44 
U.S.C. 3501-3521, all Departments are required to submit to OMB, for 
review and approval, any reporting requirements inherent in a rule. In 
this final rule, DHS is addressing the public comments received on the 
revised information collections in the interim rule and also amending 
the application requirements and procedures that the interim rule 
provided for individuals to receive T nonimmigrant status. Therefore, 
DHS is revising Form I-914, Form I-914, Supplement A, Form I-914, 
Supplement B, and Form I-765, as well as the associated form 
instructions to conform with the new regulations. These forms are 
information collections under the PRA.
    When DHS published the 2016 interim rule, it revised Form I-914, 
Form I-914, Supplement A, Form I-914, Supplement B, and the associated 
form instructions (OMB Control Number 1615-0099). DHS published two 
versions of the forms and associated instructions for public comment, 
the first version on December 20, 2016, and the second version on 
January 20, 2017. See DHS Docket No. USCIS-2011-0010 at 
www.regulations.gov. Once OMB approved the forms and the rule became 
effective, DHS published a final version of the forms and associated 
instructions, which were dated February 27, 2017.
    On December 2, 2021, OMB approved and USCIS issued a revised Form 
I-914,

[[Page 34915]]

Form I-914, Supplement A, Form I-914, Supplement B, with additional 
changes. The December 2, 2021, changes were independent of the interim 
rule that is being finalized by this rule, but the changes made in that 
revision may obviate or address some of the public comments on the 
information collection requirements for the interim rule. See DHS 
Docket No. USCIS-2006-0059. In this final rule, USCIS is requesting 
comments for 60 days on this information collection by July 1, 2024. 
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, such as permitting electronic 
submission of responses.
    Table 15 Information Collections, below, lists the information 
collections that are part of this rulemaking.
[GRAPHIC] [TIFF OMITTED] TR30AP24.058

    This final rule requires non-substantive edits to the forms listed 
above where the Type of PRA Action column states, ``No material change/
Non-substantive change to a currently approved collection.'' USCIS has 
submitted a Paperwork Reduction Act Change Worksheet, Form OMB 83-C, 
and amended information collection instruments to OMB for review and 
approval in accordance with the PRA.
USCIS Form I-914; Form I-914, Supplement A; Form I-914, Supplement B 
(OMB Control Number 1615-0099)
    Overview of information collection:
    (1) Type of Information Collection: Revision of a currently 
approved collection.
    (2) Title of Form/Collection: Application for T Nonimmigrant 
Status, Application for Derivative T Nonimmigrant Status, and 
Declaration for Trafficking Victim.
    (3) Agency form number, if any, and the applicable component of DHS 
sponsoring the collection: Form I-914, Form I-914, Supplement A, and 
Form I-914, Supplement B; USCIS.
    (4) Affected public who will be asked or required to respond: 
Individuals or households. Form I-914 permits victims of a severe form 
of trafficking in persons and certain eligible family members to 
demonstrate that they qualify for temporary nonimmigrant status 
pursuant to the Victims of Trafficking and Violence Protection Act of 
2000, and to receive temporary immigration benefits.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: Form I-914, 
1,310 responses at 2.63 hours per response; Form I-914, Supplement A, 
1,120 responses at 1.083 hours per response; Form I-914, Supplement B 
(section that officer completes), 459 responses at 3.58 hours per 
response; Form I-914, Supplement B (section that respondent completes), 
459 responses at .25 hours per response.

[[Page 34916]]

Biometric processing 2,430 respondents requiring Biometric Processing 
at an estimated 1.17 hours per response.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection is 9,261 hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated annual cost burden associated with 
this collection of information is $2,532,300.
USCIS Form I-765; I-765WS (OMB Control Number 1615-0040)
    Overview of information collection:
    (1) Type of Information Collection: Revision of a Currently 
Approved Collection.
    (2) Title of the Form/Collection: Application for Employment 
Authorization; I-765 Worksheet.
    (3) Agency form number, if any, and the applicable component of the 
DHS sponsoring the collection: I-765; I-765WS; USCIS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Individuals or households. USCIS 
uses Form I-765 to collect information needed to determine if a 
noncitizen is eligible for an initial EAD, a new replacement EAD, or a 
subsequent EAD upon the expiration of a previous EAD under the same 
eligibility category. Noncitizens in many immigration statuses are 
required to possess an EAD as evidence of work authorization.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: The estimated 
total number of respondents for the information collection I-765 paper 
filing is 1,830,347 and the estimated hour burden per response is 4.56 
hours; the estimated total number of respondents for the information 
collection I-765 online filing is 455,653 and the estimated hour burden 
per response is 4.00 hours; the estimated total number of respondents 
for the information collection I-765WS is 302,000 and the estimated 
hour burden per response is 0.5 hours; the estimated total number of 
respondents for the information collection biometrics submission is 
302,535 and the estimated hour burden per response is 1.17 hours; the 
estimated total number of respondents for the information collection 
passport photos is 2,286,000 and the estimated hour burden per response 
is 0.5 hours.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection is 11,816,960 hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual cost burden associated 
with this collection of information is $400,895,820.
1. Comments on the Information Collection Changes to Form I-914 and 
Related Forms and Instructions Published With the 2016 Interim Rule
    Comment: Two commenters on the 2016 interim rule also provided 
comments on the forms and associated instructions. One of the 
commenters had a general comment that applied to all the forms and 
instructions. The commenter wrote that although DHS published a table 
of changes for each of the forms, advocates and community members had 
not been able to review the actual forms and instructions with the 
final changes included. The commenter requested that the proposed forms 
and instructions with all planned changes be made available to the 
community and that DHS extend the comment period for the proposed forms 
to allow the community an opportunity to comment fully.
    Response: DHS understands that the table of changes must be used in 
comparison with the previous versions of the form and instructions to 
determine the precise impact the changes have on the form and agrees 
that this comparison requires some effort. Nonetheless, the table of 
changes clearly indicated where the changes were being made or proposed 
to a sufficient extent to determine the effects on the form and the 
changes to the information collection burden.
    Commenters also suggested specific revisions to the forms and 
associated instructions. DHS responds to those recommendations for each 
form, supplement, or instructions. Following this discussion, DHS 
explains the changes it is making on its own initiative for legal 
accuracy, consistency with the 2016 interim rule and the final rule, 
and enhanced clarity.
Form I-914
    Comment: One commenter provided many recommendations to revise Form 
I-914. The commenter appears to have suggested edits to the version of 
Form I-914 labeled, ``Form I-914, Application for T Nonimmigrant Status 
10.20.16'' published on December 20, 2016, with the 2016 interim rule. 
Thus, all the commenter's references to content of the form relate to 
that version. In discussing final changes all references are to the 
version of the forms published in connection with this final rule.
    The commenter recommended that DHS amend the question on page 1, 
part B, ``General Information About You'' requesting applicants to 
choose whether their gender is male or female. The commenter suggested 
including a blank space in which applicants could write in their gender 
identity. The commenter wrote that an increasing number of its clients 
who are survivors of trafficking identify as lesbian, gay, bisexual, 
transgender, queer, and intersex (LGBTQI+) and may identify as non-
binary or gender non-conforming. The commenter stated that these 
clients face heightened vulnerabilities to trafficking and requiring 
applicants to select from a binary answer option may deter them from 
representing their preferred gender expression and perpetuate their 
marginalization.
    Response: DHS notes that components across the Department are 
reviewing forms to pursue more inclusive sex and gender markers that 
accommodate non-binary and transgender individuals.\72\ This will 
improve DHS's ability to verify identity, as well as to expand access 
to accurate identity documents, thereby reducing the risk of future 
harm to LGBTQI+ persons. DHS is also reviewing policy guidance, 
training materials, and website content to ensure they provide accurate 
guidance and consistently use appropriate terminology. To support these 
Department-wide efforts, DHS will revise the forms to include a third 
gender option, ``Another Gender Identity.'' Including a third option on 
Form I-914, Form I-914, Supplement A, and Form I-914, Supplement B 
supports Executive Order 14012 (Restoring Faith in Our Legal 
Immigration Systems and Strengthening Integration and Inclusion Efforts 
for New Americans) to promote inclusion and identify barriers that 
impede access to immigration benefits.
---------------------------------------------------------------------------

    \72\ ``Interagency Report on the Implementation of the 
Presidential Memorandum on Advancing the Human Rights of LGBTQI+ 
Persons Around the World,'' (2022) https://www.state.gov/wp-content/uploads/2022/04/Interagency-Report-on-the-Implementation-of-the-Presidential-Memorandum-on-Advancing-the-Human-Rights-of-Lesbian-Gay-Bisexual-Transgender-Queer-and-Intersex-Persons-Around-the-World-2022.pdf.
---------------------------------------------------------------------------

    Comment: Regarding questions related to T nonimmigrant status 
eligibility requirements in part C (now designated part 3), the 
commenter suggested that the questions be reordered to match the order 
that the requirements appear in the statute to facilitate completing 
and adjudicating the form.

[[Page 34917]]

    Response: DHS understands the commenter's stated rationale, but the 
commenter did not explain why reordering would make the form easier to 
complete. Neither adjudicators nor other stakeholders have reported any 
challenges with the ordering of the questions. DHS believes the 
suggested change is not essential enough to warrant the burden of 
reprogramming USCIS Form I-914 related computer systems.
    Comment: On page 3, part C, ``Additional Information,'' (now titled 
``Part 3. Additional Information About your Application'') the 
commenter recommended deleting the question regarding whether the 
applicant's most recent entry was on account of the trafficking that 
forms the basis for the applicant's claim and requests that the 
applicant explain the circumstances of their most recent arrival. The 
commenter stated that to qualify for T nonimmigrant status, an 
applicant need only show physical presence in the United States on 
account of trafficking, and there is no requirement an applicant's most 
recent entry be on account of trafficking.
    Response: The commenter is correct with respect to the statutory 
eligibility requirements; however, including this question does not 
mean that an applicant must show their last entry was related to their 
trafficking. See INA sec. 101(a)(15)(T), 8 U.S.C. 1101(a)(15)(T). The 
question (now located at part 3, question 9) helps provide information 
to adjudicators about the general circumstances of the applicant's most 
recent arrival, whether related to the trafficking or not, and 
information regarding the applicant's immigration history. All this 
information assists adjudicators in understanding the full history and 
facts of an applicant's claim. Accordingly, DHS declines to delete the 
question.
    Comment: The form at part D, ``Processing Information,'' question 
1(a) (now part 4, question 1.A) asked whether the applicant has ever 
committed a crime or offense for which the applicant has not been 
arrested. The commenter suggested that DHS clarify the meaning of the 
question, noting that the question is broadly written and would include 
even minor criminal activity and behavior (such as jaywalking) that has 
no effect on the applicant's eligibility for T nonimmigrant status.
    Response: DHS will maintain this question as it is useful for 
adjudicators in gathering relevant information related to determining 
admissibility and assessing the applicant's truthfulness. In addition, 
in DHS's experience, answers to the question have provided information 
relevant to the applicant's trafficking experiences.
    Comment: The commenter requested that DHS revise part D 
``Processing Information,'' question 3(a) (Now at part 4, question 
2.A), regarding whether the applicant has engaged in prostitution or 
procurement of prostitution or intends to engage in prostitution or 
procurement of prostitution. The commenter stated that although the 
referenced conduct renders an applicant inadmissible under section 
212(a)(2)(D) of the INA, 8 U.S.C. 1182(a)(2)(D), DHS should explicitly 
exclude acts of prostitution that occurred during trafficking and 
should clarify that this question does not apply to sex trafficking. 
The commenter also stated that this question causes confusion and 
anxiety for many of its clients who are victims of sex trafficking. The 
commenter suggested rephrasing the question to read: ``Have you engaged 
in prostitution that was not related to being a victim of 
trafficking?''
    Response: DHS declines to make the specific suggested change. The 
question is appropriate as written because engaging in prostitution is 
a ground of inadmissibility, regardless of whether it is connected to 
the victimization. If the applicant has engaged in this conduct and the 
prostitution was connected to the trafficking, the applicant can 
request a waiver but must still answer the question so that USCIS can 
assess whether the inadmissibility ground applies in the first 
instance, and thus whether a waiver is needed. USCIS will examine all 
the evidence submitted and decide on a case-by-case basis whether to 
grant any waiver request.
    Comment: The commenter requested that DHS revise part D, 
``Processing Information,'' question 8, regarding whether the applicant 
has, ``during the period of March 23, 1933, to May 8, 1945, in 
association with either the Nazi Government of Germany or any 
organization or government associated or allied with the Nazi 
Government of Germany, ever ordered, incited, assisted, or otherwise 
participated in the persecution of any person because of race, 
religion, nationality, membership in a particular social group, or 
political opinion[.]'' The commenter suggested that DHS delete the 
question entirely or preface it with the question: ``Were you born 
before May 8, 1945?,'' followed by ``If no, proceed to the next 
question.'' The commenter stated that, given the temporal limits, this 
question applies to an extremely limited number of applicants, and the 
question as written is confusing and time-consuming to explain to 
applicants.
    Response: DHS declines to make the suggested revision. DHS 
appreciates the suggestion and will take it under consideration for 
future revision efforts, but will retain the question as is, to collect 
information about specific conduct that constitutes a ground of 
inadmissibility under section 212(a)(3)(E) of the INA, 8 U.S.C. 
1182(a)(3)(E).
    Comment: The form at part D, ``Processing Information,'' question 8 
(now part 4, question 8), asked whether the applicant has ever been 
present or nearby when a person was: ``(a) intentionally killed, 
tortured, beaten or injured?; (b) displaced or moved from their 
residence by force, compulsion, or duress?; or (c) in any way compelled 
or forced to engage in any kind of sexual contact or relations?.'' The 
commenter requested that DHS delete the question, and indicated that 
the question was vague, led to confusion among attorneys and 
applicants, and did not relate to any particular ground of 
inadmissibility in section 212(a) of the INA, 8 U.S.C. 1182(a).
    Response: DHS declines to delete the question. Although it does not 
relate to a specific ground of inadmissibility, the question tends to 
yield information helpful to adjudicators in understanding the details 
of both the victimization and the applicant's conduct, which are 
relevant to the adjudication of the claim for T nonimmigrant status.
    The following suggestions have already been resolved by revisions 
to the Form I-914 and are maintained in the version of the form 
published with this final rule:
     Page 2, part C, ``Additional Information,'' insert a 
question that allows an applicant to invoke the ``trauma exception'' 
for cooperation with law enforcement codified in section 
101(a)(15)(T)(i)(III)(bb) of the INA, 8 U.S.C. 
1101(a)(15)(T)(i)(III)(bb);
     Page 2, part C, ``Additional Information,'' delete the 
question related to whether the applicant is submitting an LEA 
declaration on Form I-914, Supplement B and if not, to explain why;
     Page 4, part D, ``Processing Information,'' delete 
question 2 on whether the applicant has ever received public assistance 
given that the 2016 interim rule indicates USCIS intends to remove this 
question on both Form I-914 and Form I-914, Supplement A; and
     Page 10, part H, ``Checklist'':
     Insert language in second box allowing applicants to 
indicate that they are asserting an exception to the compliance with 
reasonable law

[[Page 34918]]

enforcement requests requirement based on trauma;
     Delete checkbox indicating the applicant has included 
three photographs of the applicant; and
     Delete checkbox indicating the principal applicant has 
included three photographs of each family member for whom they are 
applying.
     DHS has deleted the checklist with the version of the Form 
I-914 and associated instructions published with this final rule 
because the instructions are sufficiently clear without the checklist, 
and it added unnecessary length to the forms. There is a checklist and 
other filing tips on the Form I-914 forms landing page.
Form I-914, Supplement A
    DHS received suggestions from two commenters to revise Form I-914, 
Supplement A. One commenter proposed edits to the version of the 
supplemental form entitled, ``Form I-914A, Supplement A, Application 
for Family Member of T-1 Recipient 10.20.16'' published on December 20, 
2016, with the 2016 interim rule. This commenter made several of the 
same suggestions it made on the Form I-914 in relation to the following 
questions, which DHS declines for the same reasons discussed above:
     Part E, ``Processing Information,'' delete the question 
asking whether the family member has committed any offense for which 
they have not been arrested;
     Part E, ``Processing Information,'' delete or simplify 
question 8 related to whether the family member has ever engaged in 
persecutory conduct between March 23, 1933, and May 8, 1945, in 
association with either the Nazi Government of Germany or any 
organization or government associated or allied with the Nazi 
Government of Germany;
     Part E, ``Processing Information,'' delete question 9 on 
whether the applicant has ever been present or nearby during certain 
conduct.
    The commenter also made suggestions that have already been resolved 
by revisions to Form I-914, Supplement A, and remain resolved with the 
publication of the Form I-914, Supplement A published with this final 
rule:
     Page 1, part A (now part 1), ``Family Member Relationship 
to You,'' insert a box to include the T-6 derivative-of-derivative 
category; and
     Part E, ``Processing Information,'' delete the question 
about whether the family member has ever received public assistance.
    The other commenter proposed edits to the version of the 
supplemental form entitled, ``(I-914A) Supplement A, Application for 
Family Member of T-1 Recipient 1.11.2017.''
    Comment: The commenter recommended that on page 1, part B, DHS 
remove the new additional heading ``Part B. Family Member Relationship 
to Your Derivative'' and combine the additional checkboxes related to 
the T-6 derivative category with the existing ``Part A. Family Member 
Relationship to You.'' The commenter wrote that the new part B heading 
made it appear as though both parts A and B of Form I-914, Supplement A 
would need to be completed for all derivatives. The commenter wrote 
that combining the boxes in one heading would more clearly distinguish 
how the family member is related to the principal applicant.
    Response: To address this concern, DHS has edited the form so that 
it is no longer divided into two parts with separate headings. The new 
form includes one part, labeled part 1, which has two items numbered 1 
and 2, but do not contain further headings. DHS is removing the 
parenthetical ``(the derivative)'' in the title to previous part D 
(renumbered part 3), ``Information About Your Family Member'' 
consistent with the changes to new part 1. DHS amends the Form I-914 
Instructions, as discussed in the next section, to provide further 
clarification on the questions in new part 1 and the form's references 
to family members.
Form I-914 Instructions
    Commenters provided several comments on the Form I-914 
Instructions. With respect to one of the commenters, it is not clear 
which version of the instructions its comments refer to, as some of the 
suggestions were already resolved by both versions of the form 
published in the docket with the 2016 interim rule. The other 
commenter's proposed edits relate to the version of the instructions 
entitled, ``(I-914) Instructions for Application for T Nonimmigrant 
Status 1.11.2017.'' In discussing both commenters' proposed edits, DHS 
will use references to the January 11, 2017, version.\73\
---------------------------------------------------------------------------

    \73\ Although it is not clear which version of the forms one 
commenter reviewed, the commenter's suggestions are consistent with 
the version dated January 11, 2017.
---------------------------------------------------------------------------

    Comment: One commenter suggested adding the statutory citation of 
section 103 of the TVPA, as amended, 22 U.S.C. 7102, for the definition 
of ``a severe form of trafficking in persons'' when explaining that to 
qualify for T nonimmigrant status, an applicant must meet that 
definition at page 1, Point 1(A), ``Who May File This Form?''. The 
commenter explained that including the citation would easily refer 
applicants and advocates to review the statutory definition of ``a 
severe form of trafficking in persons.'' See 22 U.S.C. 7102. The 
commenter mentioned that the instructions to Form I-918, Petition for U 
Nonimmigrant Status, provide references to the relevant designation of 
qualifying crimes.
    Response: DHS agrees that the term ``a severe form of trafficking 
in persons'' has a specific legal meaning and that applicants may not 
readily understand the term. DHS has added language at new page 1, 
``What Is the Purpose of Form I-914?,'' to refer applicants to the 
language of the definition of ``a severe form of trafficking'' included 
in the section ``Evidence to Establish T Nonimmigrant Status,'' which 
derives from the language in TVPA section 103, the citation suggested 
by the commenter.\74\ This approach will provide applicants with easy 
reference to the actual definition.
---------------------------------------------------------------------------

    \74\ The page numbers and section headings of the forms and 
instructions are provided in these comment responses to permit the 
commenter to find and review precisely how their comment was 
addressed. However, text may have shifted during final development 
and publication and DHS does not guarantee that the page numbers in 
the final version of the form will correspond to the page numbers 
cited here or as they existed on the forms when they were published 
for the interim rule or on January 10, 2018.
---------------------------------------------------------------------------

    Comment: The commenter recommended changing the description of 
family members who may be eligible for T nonimmigrant status based on 
facing a danger of retaliation at page 2, Point 2(C)(3), ``Who May File 
This Form?'' and at page 4, part B, ``Completing Form I-914, Supplement 
A, Application for Family Member of T-1 Recipient.'' The commenter 
requested DHS use the term ``your sibling's children'' rather than the 
phrase ``niece or nephew,'' which could have a more expansive 
definition than the regulations have intended. The commenter also 
recommended using the term ``your parent's adult child'' rather than 
``your sibling,'' explaining that the term sibling could include all 
siblings of a T-1 applicant, which it believed was a broader category 
than that of the adult or minor children of the parent.
    Response: DHS disagrees with the commenter's reasoning. The terms 
suggested by the commenter would exclude some eligible family members 
who Congress intended to include in the statute. INA sec. 
101(a)(15)(T)(ii)(III), 8 U.S.C. 1101(a)(15)(T)(ii)(III), provides that 
the ``adult or minor child'' of a

[[Page 34919]]

derivative of the principal who faces a present danger of retaliation 
may obtain derivative T nonimmigrant status. DHS interprets the term 
``adult or minor child'' to encompass both the ``son or daughter'' and 
``child'' immigration definitions; therefore, persons of any age and 
any marital status can be ``adult or minor children.'' See USCIS Policy 
Memorandum, New T Nonimmigrant Derivative Category and T and U 
Nonimmigrant Adjustment of Status for Applicants from the Commonwealth 
of the Northern Mariana Islands (Oct. 30, 2014).\75\ Because the term 
``child'' is a legal term of art defined as an unmarried person who is 
under the age of 21, see INA sec. 101(b)(1), 8 U.S.C. 1101(b)(1), using 
the phrase ``your parent's child'' would only include unmarried 
children under age 21 of the principal's derivative parents. The term 
``your parent's child'' would not include the adult children of the 
principal's derivative parents, or the married children of any age of 
the principal's derivative parents. The phrase ``your sibling's 
children'' would be similarly restrictive.
---------------------------------------------------------------------------

    \75\ ``T Derivative Memo,'' https://www.uscis.gov/sites/default/files/document/memos/Interim_PM-602-0107.pdf.
---------------------------------------------------------------------------

    However, as discussed above, to provide greater clarity on the 
family relationship of the category of adult or minor children who may 
be eligible for T nonimmigrant status based on facing a danger of 
retaliation, DHS has revised Form I-914, Supplement A (see new page 1, 
part 1, item 2) and the Form I-914 Instructions (see new page 4, 
``Completing Form I-914, Supplement A, Application for Derivative T 
Nonimmigrant Status'').
    Comment: The commenter suggested changes to page 2, ``General 
Instructions,'' part B, ``General Information About You,'' item 1, and 
page 5, part D, ``Information About Your Family Member (the 
derivative),'' item 1. Both sections explained that the questions 
requesting the applicant's or family member's name refer to the name as 
shown on the individual's ``birth certificate or legal name change 
document.'' The commenter requested DHS delete these explanations 
because some trafficking survivors do not have access to identity 
documents with the applicant's legal name, and such a requirement could 
create an evidentiary barrier for victims.
    Response: It is important to maintain similar language as it 
provides clear instruction on the name that DHS is requesting. It is 
essential for DHS to know the name of the applicant or their family 
member as it appears on official identification documents so that DHS 
can conduct proper background checks and ensure there is no confusion 
about the identity of the person receiving the status, if approved. 
Neither this explanation nor the questions on the form indicate that 
evidence of a specific document is a requirement to obtaining status. 
Furthermore, the requirement does not in any way impact an applicant's 
evidentiary burden. However, DHS has changed the phrasing to ``birth 
certificate, passport, or other legal document'' to provide more 
clarity. See new part 4, ``Information About your Family Member,'' item 
1.
    Comment: Regarding the instruction at part D, ``Information About 
Your Family Member,'' item 3, the commenter opposed the collection of 
the family member's intended physical street address because the 2016 
interim rule states that DHS is allowed to disclose an applicant's 
information to a law enforcement agency with the authority to detect, 
investigate, or prosecute severe forms of trafficking in persons. The 
commenter wrote that disclosing the applicant's physical street address 
could jeopardize the victim's safety and recommended adding language to 
clarify that an applicant should only provide this information if it 
was safe to do so and could instead provide an alternate safe mailing 
address.
    Response: DHS declines to make the change. The request for the 
applicant's physical street address is distinct from the request for 
the applicant's mailing address used to provide official 
correspondence. DHS allows applicants to provide an alternative mailing 
address if they do not feel it is safe to receive mail at their 
residence as noted on previous editions of the form as well as at new 
page 5, part 4, item 4. This provision is to protect against 
perpetrators having access to USCIS correspondence with the applicant. 
DHS requests the applicant's physical street address for internal 
information purposes and consistent with requirements that individuals 
applying for visas register their presence. See INA secs. 221(b), 261, 
265, 8 U.S.C. 1201(b), 1301, 1305. Furthermore, while DHS appreciates 
the commenter's concern that sharing address information with law 
enforcement agencies could jeopardize an applicant's safety, that 
authority exists for the purpose of promoting investigation and 
prosecution of traffickers, not to put victims of trafficking at risk.
    Comment: The commenter made a general recommendation that DHS 
clarify on page 2, ``Completing Form I-914,'' part B, number 3, that an 
applicant's home address will not be used to contact an applicant if 
the applicant provides an address in the ``safe mailing address'' space 
on the Form I-914.
    Response: DHS believes that the explanation of the safe mailing 
address is clear on this point. The language explains that if an 
applicant does not feel secure in receiving correspondence regarding 
their application at the applicant's home address, the applicant should 
provide a safe mailing address. DHS maintains this language in the Form 
I-914 Instructions. See new page 3, part 3, ``General Information About 
You,'' item 4, and new page 4, ``Completing Form I-914, Supplement A, 
Application for Derivative T Nonimmigrant Status,'' part 4, item 4, for 
instructions regarding the safe mailing address.
    Comment: The commenter also requested that the instructions at page 
3, ``Completing Form I-914,'' part B, number 6, include a clarification 
that the applicant's home telephone number will not be used to contact 
an applicant if they provide a telephone number in the ``safe daytime 
telephone number'' blank on the Form I-914.
    Response: Again, DHS believes the explanation of the safe telephone 
number in the instruction at part 6 is clear and already explains that 
an applicant may include a safe daytime phone number if they wish. See 
new page 4, part 6, ``Applicant's Statement, Contact Information, 
Declaration, Certification, and Signature'' and new page 6, part 6, 
``Applicant's Statement, Contact Information, Declaration, 
Certification, and Signature'' for instructions regarding the safe 
telephone number.
    Comment: The other commenter requested DHS add an instruction to 
the section, ``General Instructions,'' that applicants represented by 
an attorney should include on the Notice of Entry of Appearance as 
Attorney or Accredited Representative (Form G-28) to be filed with Form 
I-914 that the attorney also represents the applicant with respect to 
the Form I-765. The commenter reported that attorneys have experienced 
difficulty communicating with USCIS regarding the status of Employment 
Authorization Documents (EADs) for approved T-1 nonimmigrants when the 
attorney has submitted a Form G-28 in connection with the Form I-914.
    Response: DHS agrees with the commenter's recommendation. Because 
USCIS has codified a new, streamlined Bona Fide Determination process, 
DHS believes it would be helpful for

[[Page 34920]]

attorneys or representatives to include all forms covered by their 
representation on the Form G-28.
    Comment: The commenter requested that in the ``Evidence to 
Establish T Nonimmigrant Status'' section of the Instructions, DHS 
delete the phrase ``You must demonstrate that you were brought to the 
United States'' and replace it with either ``You must demonstrate that 
you were a victim of a severe form of trafficking as defined by 22 
U.S.C. 7102'' or with the full definition of the term ``a severe form 
of trafficking in persons.'' The other commenter also suggested adding 
the statutory reference for the definition of ``a severe form of 
trafficking in persons'' so applicants could easily review the 
statutory definition.
    Response: DHS declines to include the statutory citation but, as 
recommended, already included the actual language of the definition 
from 22 U.S.C. 7102 in the revisions to the Form I-914 Instructions 
published on December 2, 2021, and February 27, 2017, in conjunction 
with the 2016 interim rule. To provide an even more complete 
definition, DHS also added further detail from the definition of sex 
trafficking included at 22 U.S.C. 7102. See new page 8, ``Evidence to 
Establish T Nonimmigrant Status,'' second items 1-2.
    Comment: One commenter suggested adding language to the section 
``Evidence of Cooperation with Reasonable Requests from Law 
Enforcement.'' The commenter recommended adding after the statement 
that USCIS makes the decision of whether the applicant meets the 
eligibility requirements for T nonimmigrant status: ``regardless of 
whether LEA chooses to investigate or prosecute the trafficking 
crime.'' The commenter wrote that the proposed language would further 
clarify that USCIS makes the final determination about whether an 
applicant is eligible for T nonimmigrant status and provide additional 
reassurance to law enforcement agencies that their declarations are not 
determinations of an individual's eligibility to obtain T nonimmigrant 
status.
    Response: In DHS's view, the proposed language does not achieve the 
commenter's goal, and DHS believes the existing language is sufficient 
on this point; therefore, DHS declines to adopt this recommendation.
    Comment: One of the commenters recommended deleting from the 
``Evidence to Establish T Nonimmigrant Status'' section, language 
instructing applicants to describe their attempts to obtain a Form I-
914, Supplement B if one was not included with their Form I-914. The 
commenter wrote that there is no requirement in statute or the 2016 
interim rule regulations requiring this information and that this 
instruction is inconsistent with the 2016 interim rule's clarification 
that Form I-914, Supplement B Declarations will be given ``no special 
weight.''
    Response: This suggestion was resolved by revisions to the Form I-
914 Instructions published on February 27, 2017, in conjunction with 
the 2016 interim rule. To provide additional clarity, however, DHS is 
adding guidance to the Form I-914 Instructions at new page 8, 
``Evidence of Cooperation with Reasonable Requests from Law 
Enforcement,'' that applicants are not required but may choose to 
provide evidence of their reasons for not submitting or attempting to 
obtain a Form I-914, Supplement B. In DHS's experience, if applicants 
choose to include this information, it can be helpful to adjudicators 
in understanding the full details of an applicant's claim and their 
engagement with law enforcement.
    Comment: One commenter requested DHS update items 10-11, which 
directed applicants to discuss the harm or mistreatment they fear if 
removed from the United States and the reasons for the fear. The 
commenter stated that the factors detailed in 8 CFR 214.11(a) 
(redesignated here as 8 CFR 214.201) are broader than ``harm'' or 
``mistreatment'' and that the current instructions fail to detail the 
types of extreme hardship involving unusual and severe harm 
contemplated by the 2016 interim rule.
    Response: DHS acknowledges that this item's phrasing could be 
revised to ensure that applicants do not believe that USCIS only 
considers extreme hardship factors related to feared harm or 
mistreatment. Accordingly, DHS is revising the form to direct 
applicants to include information on the hardship that they believe 
they would suffer, including harm or mistreatment as examples. For 
conciseness, DHS has also combined items 10 and 11. DHS has also 
revised the other factors for consistency with the new regulatory text, 
discussed further below. See new page 9, ``Personal Statement,'' item 
3.
    The following suggestions were resolved by subsequent revisions to 
the Form I-914 Instructions:
     Page 1, ``Who May File this Form?,'' item 1(C), next to 
``under the age of 18:'' insert the following text: ``or is asserting 
an exception due to physical or psychological trauma;''
     Page 1, ``Who May File this Form?,'' number 2, insert 
language to reflect T-6 classification;
     Page 1, ``Who May File This Form?,'' add language to the 
heading to clarify that principal applicants can file for their 
eligible family members at any time after the initial T-1 application 
has been filed and that the principal applicant need not be granted T-1 
nonimmigrant status before they can file for their eligible family 
members;
     Page 7, ``Initial Evidence'' and throughout the form, 
delete references to a requirement to submit passport photos;
     Page 7, ``Evidence to Establish T Nonimmigrant Status,'' 
section 1, delete ``You must demonstrate that you were brought to the 
United States . . .'';
     Page 8, ``Evidence of Cooperation with Reasonable Requests 
from Law Enforcement,'' add language that if an applicant does not 
provide Form I-914, Supplement B, they must provide additional 
evidence, which can be in the form of a declaration to show 
victimization and attempted cooperation with law enforcement;
     Page 8, ``Personal Statement,'' delete item 2 that 
directed applicants to provide information on ``the purpose for which 
[they] were brought to the United States'';
     Page 8, ``Personal Statement,'' delete item 6 requesting 
information on the length of time the applicant was detained by the 
traffickers because there is no requirement that the victim be detained 
in order to qualify for T nonimmigrant status;
     Page 8, ``Personal Statement,'' delete item 9, instructing 
applicants to indicate why they were unable to leave the United States 
after being separated from the traffickers;
     Regarding the discussion of privacy in the instructions, 
add examples of the entities to which an applicant's information could 
be disclosed under 8 U.S.C. 1367;
     Throughout the instructions, delete distinctions between 
primary and secondary evidence, consistent with 2016 interim rule's 
elimination of this distinction; and
     Throughout the instructions, insert language to include 
the T-6 classification.
Form I-914, Supplement B
    One commenter provided suggested revisions to the Form I-914, 
Supplement B. It is not clear which version of the form the commenter 
refers to in its suggestions. In discussing the commenter's proposed 
edits, DHS will use references to the version of the Form I-914, 
Supplement B entitled, ``(I-914B) Supplement B, Declaration of Law 
Enforcement Officer for Victim of Trafficking in Persons 1.9.2017'' in 
the

[[Page 34921]]

rulemaking docket. The commenter made the same request it made with 
respect to Form I-914 and Form I-914, Supplement A to expand the 
options for answering the question on gender on page 1, part A, 
``Victim Information.'' DHS will make the suggested revision to the 
question about gender for the same reasons discussed above in DHS's 
response to comments to Form I-914.
    Comment: The commenter recommended that at page 3, part E, ``Family 
Members Implicated in Trafficking,'' in the question regarding whether 
the applicant believes that their family members were involved in the 
applicant's trafficking to the United States, DHS delete the phrase 
``to the United States.'' The commenter noted that the statutory 
requirement for eligibility is that the victim be physically present on 
account of trafficking and that there is no requirement that the 
trafficker trafficked the victim to the United States or brought the 
person to the United States for the purpose of trafficking.
    Response: DHS agrees with the comment and is revising the question 
accordingly. See new page 4, part 5, ``Family Members Implicated in 
Trafficking,'' question 1.
    The following suggestion was resolved by subsequent revisions to 
the Form I-914, Supplement B and is maintained in the form revision 
published with this rule:
     Page 2, part C, ``Statement of Claim,'' item 1, add the 
words ``patronizing, or soliciting'' after ``obtaining'' to reflect 
statutory changes made by the JVTA to the definition of sex trafficking 
codified at 22 U.S.C. 7102 and reflected in the definition of sex 
trafficking in the 2016 interim rule at 8 CFR 214.11(a).
Form I-914, Supplement B Instructions
    One commenter made several requests to revise the Form I-914, 
Supplement B Instructions to the version entitled, ``(I-914B) 
Instructions for Supplement B, Declaration of Law Enforcement Officer 
for Victim of Trafficking in Persons 1.9.2017.''
    Commenter: Regarding the first paragraph included on page 1, in the 
section, ``What is the Purpose of this Form?,'' the commenter 
recommended DHS add language that ``a formal investigation or 
prosecution is not required in order for a LEA to complete an 
endorsement.'' The commenter also suggested that DHS move to the 
beginning of the second paragraph under this heading the language that 
USCIS, not the LEA, makes the decision regarding whether the applicant 
meets the eligibility requirements for T nonimmigrant status. The 
commenter wrote that some law enforcement officers believed that 
criminal charges or convictions were needed before Form I-914, 
Supplement B could be signed and that signing a Supplement B would lead 
to the automatic approval of an immigration benefit.
    Response: The commenter's first suggestion was resolved by 
revisions to the Form I-914, Supplement B Instructions published on 
February 27, 2017, in conjunction with the 2016 interim rule. The 
instructions on page 1 in the third paragraph under the heading, ``When 
Should I Use Form I-914, Supplement B?'' clearly state that a formal 
investigation is not a requirement for an LEA to sign the form. The 
instructions also state in the first paragraph that a formal 
investigation or prosecution is not required for an LEA to complete the 
form. DHS declines to make the commenter's recommendation to move the 
language about USCIS' role in the adjudication process. DHS believes it 
is appropriate to describe the purpose of Form I-914, Supplement B 
before clarifying the respective roles of USCIS and the LEA signing the 
form. See new page 1, ``When Should I Use Form I-914, Supplement B?''.
    Comment: At page 1 ``When Should I Use Form I-914, Supplement B,'' 
and at page 2, part C, ``Statement of the Claim,'' item 1, the 
commenter suggested adding the statutory citation for the definition of 
``a severe form of trafficking in persons'' when explaining that to 
qualify for T nonimmigrant status, an applicant must meet that 
definition. See TVPA 103, 22 U.S.C. 7102. The commenter wrote that some 
officers interpret ``severe'' as extremely cruel or egregious activity 
or to mean the length of time in trafficking. The commenter wrote, for 
example, that a law enforcement officer had stated that 2 months of 
involuntary servitude was ``not severe enough'' to be trafficking. 
Other officers, the commenter continued, have stated that human 
trafficking means sex trafficking and have not recognized labor 
trafficking survivors as victims.
    Response: DHS agrees it is important for LEAs to understand the 
term but declines to include the statutory citation to TVPA section 
103, 22 U.S.C. 7102. The instructions refer the reader to the 
``Statement of Claim'' section to read a definition, which includes a 
plain language definition that incorporates relevant text from the 
statute. See new page 2, part 3, ``Statement of Claim,'' item 1.
    Comment: The commenter suggested at page 2, ``General 
Instructions,'' part A, ``Victim Information,'' number 1, that DHS 
remove from the instructions the text, ``as shown on his or her birth 
certificate or legal name change document,'' for the same reasons 
discussed above in the section on the Form I-914 Instructions.
    Response: DHS has revised the language in a similar manner as the 
Form I-914 Instructions. The language now refers to a ``birth 
certificate, passport, or other legal document.'' As discussed above in 
the context of the same suggestion with respect to Form I-914 
Instructions, it is important to provide clear instruction on what name 
USCIS is requesting. Neither this explanation nor the question on Form 
I-914, Supplement B indicate that the applicant must submit a specific 
document to obtain T nonimmigrant status or for law enforcement to sign 
a Form I-914, Supplement B. See new page 2, part 1, ``Victim 
Information,'' item 1.
    Comment: The commenter suggested that at page 2, part B, ``Agency 
Information,'' number 1, DHS revise the discussion of certifying 
agencies to mirror language in the preamble to the 2016 interim rule 
and to include other agencies, such as the U.S. Department of Labor, 
that have the authority to provide a Form I-914, Supplement B.
    Response: DHS agrees that the language in this section is 
inconsistent with the definition of LEA at 8 CFR 214.201 (previously 8 
CFR 214.11(a)). Although DHS did not include every example of a 
certifying agency, DHS revised the Form I-914, Supplement B 
Instructions for consistency with the language in new 8 CFR 214.201 and 
included a cite to the new regulation. See new page 2, part 2, ``Agency 
Information,'' item 1.
    The following suggestions were resolved by revisions to the Form I-
914, Supplement B Instructions published on February 27, 2017, in 
conjunction with the 2016 interim rule, and/or in the December 2, 2021, 
publication:
     Page 3, part C.1.D, ``Statement of Claim,'' delete the 
option for law enforcement officers to certify that they believe the 
individual is not a victim of trafficking.
     Page 3, part D, ``Cooperation of Victim,'' add language 
clarifying that if an applicant is unable to cooperate with LEA 
requests due to physical or psychological trauma or age, ``the 
applicant must provide additional evidence.''

[[Page 34922]]

2. Comments on Information Collection Changes to Form I-914, 
Application for T Nonimmigrant Status, and Related Forms and 
Instructions Published With Final Rule (60 Day Notice)
    DHS received several comments on the January 10, 2018, Federal 
Register notice, many of which suggested revisions to the forms and 
associated instructions. DHS responds to those recommendations for each 
form, supplement, or instructions. DHS does not respond to comments 
outside the scope of the information collection.
Form I-914
    Comment: A few commenters requested that on page 1, part 2, ``U.S. 
Physical Address,'' the form include instructions informing applicants 
that they could provide a safe mailing address instead of their 
physical address. The commenters stated many victims of trafficking are 
involved in multiple legal systems and are often required to provide 
the T nonimmigrant status application to the trafficker as part of the 
criminal or civil discovery process. Additionally, they stated that 
under this rule, DHS may disclose an applicant's information to an LEA 
that may be required to share this information with the trafficker to 
comply with constitutional requirements during criminal prosecution, 
potentially jeopardizing the applicant's safety. The commenters further 
suggested that DHS could instruct them to provide just the ZIP code of 
their physical address to ensure that applicants can have their 
biometrics appointments scheduled at the nearest ASC.
    Response: DHS shares the commenters' goal of ensuring the safety of 
applicants for T nonimmigrant status; however, DHS declines to make 
these changes. As discussed previously, DHS requests the applicant's 
physical street address for internal information purposes and 
consistent with requirements that individuals applying for visas 
register their presence. See INA secs. 221(b), 261, 265, 8 U.S.C. 
1201(b), 1301, 1305. Although DHS appreciates the concern regarding 
information provided to law enforcement agencies, that authority exists 
for the purpose of promoting investigation and prosecution of 
traffickers, not to put victims of trafficking at risk. If law 
enforcement is obligated to turn over a T nonimmigrant status 
application in the context of a criminal prosecution, law enforcement 
and the prosecutor should take steps to ensure the victim's safety.
    Comment: The same commenters recommended adding an instruction at 
page 2, part 2, ``Other Information,'' question 9, for applicants to 
check the box corresponding to the gender with which they identify. The 
commenters mentioned USCIS' policy to change the gender on official 
immigration documents, such as employment authorization cards and 
documentation of immigration status, if the individual can provide 
specifically enumerated evidence verifying a change in gender.
    Response: DHS appreciates the sensitivity that surrounds the issue 
of gender identity. Although DHS declines to make universal changes at 
this time to questions and data collections regarding sex, gender, 
male, female, mother, father, sister, brother, and other gender-related 
terms, as discussed above, DHS will add a third gender identity option 
to the Form I-914 and related forms.
    Comment: On page 3, part 4, ``Additional Information About Your 
Application,'' questions 3.b. and 4.b., commenters suggested changes to 
the instruction to provide an explanation and supporting documentation 
for the answers to the questions. The commenters recommended deleting 
language indicating that the applicant should attach documents in 
support of their claim to be a victim of a severe form of trafficking 
in persons and the specific facts supporting the claim. The commenters 
also suggested deleting instructions in 3.b. and 4.b. to use extra 
space on the form to provide explanations for affirmative answers to 
questions regarding the physical presence requirement and the extreme 
hardship requirement. Finally, they recommended adding an instruction 
that the personal narrative statement describing the trafficking also 
address each eligibility requirement for T nonimmigrant status.
    Both commenters stated the current language appears to suggest that 
a one-sentence explanation will be sufficient evidence of the physical 
presence and extreme hardship eligibility requirements. They also 
expressed that the recommended additional language would help ensure 
that the personal narrative sufficiently addresses all eligibility 
requirements. One of the commenters stated it has observed an increase 
in RFEs for lack of sufficient information in the initial T visa 
application on these two eligibility requirements. The commenter stated 
that the additional language could reduce the number of RFEs and delays 
in processing time.
    Response: DHS agrees that it is important for applicants to provide 
sufficient information regarding their eligibility for T nonimmigrant 
status in their initial application. DHS already deleted the 
instruction included in 3.b. and 4.b., which it agrees may not have 
encouraged applicants to provide sufficient information as to the 
physical presence and extreme hardship eligibility requirements. DHS 
also already included an instruction to address the eligibility 
requirements in the personal narrative statement. DHS has deleted the 
instructions in questions 1, 3, and 4 requested the applicant attach 
evidence or documentation; instead, DHS has included in the 
introductory paragraph that the applicant should attach evidence and 
documents to support their claim if they answer ``Yes'' to questions 1-
4. The applicant bears the burden of establishing their eligibility for 
T nonimmigrant status and available documentation corroborating the 
applicant's claim should be provided.
    Comment: About page 3, part 4, ``Additional Information About Your 
Application,'' question 5, which asks whether the applicant has 
reported the crime they claim to have suffered, one commenter suggested 
DHS change the word ``crime'' to ``trafficking.'' The commenter stated 
this change will clarify that applicants must report a crime that 
includes trafficking as at least one central reason for the commission 
of the crime.
    Response: DHS agrees and has already changed the wording to 
``trafficking crime,'' which is more specific and appropriate, given 
the requirement that the applicant be a victim of ``a severe form of 
trafficking in persons'' and comply with any reasonable law enforcement 
requests for assistance in an investigation or prosecution of a crime 
involving acts of trafficking in persons. See INA sec. 
101(a)(15)(T)(i)(I), (III), 8 U.S.C. 1101(a)(15)(T)(i)(I), (III).
    Commenter: Regarding page 3, part 4, ``Additional Information About 
Your Application,'' commenters suggested adding the parenthetical ``(if 
any)'' after the question requesting the criminal case number. The 
commenters stated that the recommended language would provide 
clarification that a police report case number is not required and that 
it would reinforce that a law enforcement declaration or documentation 
of criminal investigation is not required to file for a T visa. One of 
the commenters stated it frequently encounters the misconception that a 
law enforcement declaration is required to apply for a T visa, causing 
some survivors and advocates to unnecessarily delay filing their 
application until a law enforcement report is made or a

[[Page 34923]]

criminal investigation is instigated. The commenters also suggested 
deleting the request for an explanation if the applicant did not report 
to law enforcement. They instead suggested adding in an instruction to 
provide the explanation in the applicant's personal narrative. Two 
commenters stated that question 7 suggests that the explanation of why 
the survivor has not reported the trafficking crime can be achieved by 
a brief sentence and makes it appear as if reporting to law enforcement 
is optional rather than reinforcing the need for the applicant to raise 
either the trauma-based exception or age-based exemption to the 
requirement to comply with reasonable law enforcement requests.
    Response: DHS agrees with the commenters' suggestion regarding the 
case number and has already revised the form to state that the 
applicant should indicate ``the case number assigned, if any.'' See new 
page 3, part 3, question 5. However, DHS declines to remove the 
requirement that an applicant explain why they did not report the 
crime. The current form indicates that an applicant should explain the 
circumstances. Applicants have the option to either provide an 
explanation on the form or in their personal narrative statement. DHS 
does not see the need to further specify where the explanation is 
included.
    Comment: Regarding page 3, part 4, ``Additional Information About 
Your Application,'' questions 8 and 9 (now questions 6 and 7), two 
commenters recommended deleting the instruction for minors under 18 
years of age to skip question 9.b. (now question 7) related to whether 
the minor reported their trafficking to law enforcement. The commenters 
stated that although minors are exempt from the general requirement to 
comply with reasonable law enforcement requests for assistance in the 
investigation or prosecution of acts of trafficking, many minor 
applicants do report their trafficking victimization to law enforcement 
and do not need to skip the question. The commenters further stated 
that forcing minors to skip question 9.b. regarding cooperation with 
law enforcement may jeopardize their opportunity to adjust status to 
lawful permanent residence early based on the criminal investigation or 
prosecution having been completed. The commenters also stated the 
language creates unnecessary confusion that only those who are minors 
at the time of filing Form I-914 are eligible for an exemption to the 
requirement to comply with reasonable law enforcement requests when 
USCIS has stated that minors under 18 at the time of the victimization 
can meet this exemption.
    Response: DHS agrees with the commenter's stated rationale and has 
deleted this instruction.
    Comment: At page 4, part 4, ``Additional Information About Your 
Application (continued),'' questions 14.a.-14.b. (now question 9), 
commenters suggested deleting both questions regarding the 
circumstances of the applicant's most recent entry. Two commenters 
stated that question 3.a. (now question 3) already sufficiently 
addressed the physical presence eligibility requirement and question 
14.a. confuses the physical presence eligibility requirement and 
reinforces existing physical presence misconceptions. The first 
misconception is that an applicant's latest entry must be based on the 
trafficking and does not recognize that there are other alternative 
exceptions to satisfy the physical presence requirement when the latest 
entry is not related to the trafficking. Commenters wrote that question 
14.a. also reinforces the misconception that a victim of severe form of 
trafficking in persons is required to be trafficked across the United 
States border. One commenter stated that question 14.a. misstates the 
physical presence eligibility requirement. Neither the statutory 
language nor the regulatory language requires that an applicant's last 
entry be related to the trafficking.
    Response: As discussed previously in response to comments on Form 
I-914 published with the IFR, the commenters are correct with respect 
to the statutory eligibility requirements, see INA sec. 101(a)(15)(T), 
8 U.S.C. 1101(a)(15)(T); however, including these questions does not 
mean that an applicant must show their last entry was related to the 
trafficking suffered. The questions help provide information to 
adjudicators about the general circumstances of the applicant's most 
recent arrival, whether related to the trafficking or not, and 
information regarding the applicant's immigration history. All this 
information assists adjudicators in understanding the full history and 
facts of an applicant's claim. Accordingly, DHS declines to delete the 
questions; however, DHS has combined the two into a new question at new 
page 4, part 3, item 9.
    Comment: At page 4, part 5, ``Processing Information,'' the 
introductory paragraph instructs applicants to answer affirmatively any 
question that applies even if their records were sealed, otherwise 
cleared or the applicants have been told they no longer have a record. 
Commenters requested DHS add an instruction that applicants could 
answer ``no'' to questions 1.b. through 1.f. and ``n/a'' to questions 
2-5 regarding their criminal history if they had been granted vacatur. 
The commenter stated that vacatur is a form of relief for trafficking 
survivors who were forced to commit illegal acts by their traffickers 
and that, unlike expungement, vacatur is the recognition from the 
criminal justice system that a mistake was made, that the accused was 
wrongfully accused and in fact is a victim, and that the arrest or 
conviction should never have occurred. The commenters expressed that 
vacatur completely eradicates a survivor's criminal history as if the 
arrest and conviction had not occurred, instead of excusing criminal 
behavior; vacatur also recognizes that victims who did not have the 
requisite mens rea to commit the criminal act should not be penalized. 
They also stated that the current instructions are confusing and may 
lead to the inadvertent or illegal disclosure of state court records 
where state confidentiality laws may prevent disclosure of juvenile 
state court files without a court order. One of these commenters also 
requested that DHS delete instructions to answer each question about 
the applicant's criminal history regardless of whether the criminal 
records were sealed or otherwise cleared.
    Response: DHS recognizes that victims of human trafficking may be 
forced to commit illegal acts at the hands of their traffickers; 
however, DHS declines to make the requested changes because having all 
information relevant to an applicant's trafficking experience is 
helpful to the adjudication. Applicants have an opportunity to explain 
in their personal statement and through their supporting evidence, the 
circumstances of any criminal activity. As the instructions state, 
answering ``yes'' to the questions regarding criminal conduct and 
inadmissibility will not necessarily lead to a denial of the 
application.
    Comment: Another commenter requested DHS add an instruction that 
applicants could answer questions in the negative if their response 
related to prostitution that they were forced to engage in by their 
trafficker. The commenter stated the question could lead to filing 
unnecessary inadmissibility waivers, fee waivers, and additional 
explanations.
    Response: DHS responded to a similar comment above. As discussed 
above, the question is appropriate as written because engaging in 
prostitution is a ground of inadmissibility, whether or not connected 
to victimization. If the

[[Page 34924]]

applicant has engaged in this type of conduct and the prostitution was 
connected to the trafficking, the applicant can request a waiver but 
must still answer the question to address possible inadmissibility. 
USCIS will examine all the evidence submitted and decide on a case-by-
case basis whether to grant any waiver request.
    Comment: Regarding page 4, part 5, ``Processing Information,'' 
question 1.a., one commenter requested DHS delete the question which 
asks whether the applicant has ever committed a crime or offense for 
which the applicant has not been arrested. The commenter stated the 
question was vague and overbroad and goes beyond the statutory grounds 
of inadmissibility at section 212(a)(2) of the INA, 8 U.S.C. 
1182(a)(2). The commenter further stated that the question would 
encompass very minor criminal infractions as well as serious criminal 
activity, and that the question assumes applicants have sufficient 
legal knowledge to answer accurately.
    Response: DHS declines to delete the question. As discussed 
previously in response to a similar comment above, answers to this 
question are useful for adjudicators in gathering relevant information 
related to determining admissibility and assessing the applicant's 
truthfulness. In addition, in DHS's experience, answers to the question 
have provided information relevant to the applicant's trafficking 
experiences.
    Comment: One commenter stated that DHS's changes to the 
inadmissibility questions dramatically expand the scope of information 
sought without identifying the need for the expansion. According to the 
commenter, these changes appear intended to bolster an adjudicator's 
ability to deny applications on attenuated discretionary grounds. The 
commenter stated that this was especially troubling given that several 
of these expanded queries relate to potential inadmissibility grounds 
or other discretionary concerns that are often incidental to the 
trafficking or the victim's attendant vulnerabilities that helped 
precipitate the trafficking victimization.
    Response: DHS will not change the wording or delete any of the 
inadmissibility questions as a result of this comment. The changes to 
these questions do not change the meaning of any of the statutory 
grounds of inadmissibility but were meant to make the questions less 
legalistic and use plain language to facilitate greater understanding 
of their meaning. The changes were also made to promote consistency 
with changes to questions on admissibility used in other USCIS forms.
    Comment: Regarding page 5, part 5, ``Processing Information,'' 
question 7, one commenter suggested making a change to the 
inadmissibility question related to whether the applicant ever imported 
prostitutes. The commenter stated that the phrase ``imported 
prostitutes'' was dehumanizing and insensitive, especially because many 
victims who suffered sex trafficking will be using this form and 
suggested, in the alternative, the phrase ``prostituted persons'' or 
``persons in prostitution.''
    Response: DHS declines to make this change. The question uses the 
statutory language from section 212(a)(2)(D) of the INA, 8 U.S.C. 
1182(a)(2)(D) and is not meant to ascribe any characteristics to the 
people referenced.
    Comment: At page 8, part 7, ``Applicant's Statement, Contact 
Information, Declaration, Certification, and Signature,'' commenters 
requested DHS add to the paragraph on the authorization of release of 
information that ``any disclosure shall be in accordance with the VAWA 
confidentiality provisions at 8 U.S.C. 1367 and 8 CFR 214.14(e).'' One 
commenter stated this inclusion would clarify and reinforce the 
applicability of these confidentiality provisions.
    Response: DHS agrees that it is important that applicants 
understand that their release of information is subject to the 
confidentiality provisions at 8 U.S.C. 1367 and is adding in language 
regarding these provisions.
    Comment: One commenter requested DHS not restrict the forms from 
editing to allow users to make comments directly on the form. The 
commenter is a national technical assistance provider and uses forms to 
provide training and technical assistance by creating comments and 
guidance on how to complete specific sections of the forms.
    Response: DHS declines to make any changes in response to the 
comment. Nevertheless, stakeholders can obtain an unlocked version of 
the form for training purposes by contacting the information contact 
for this rule.
    The following suggestion was resolved by subsequent revisions to 
the Form I-914:
     Page 2, part 2, ``General Information About You 
(Victim),'' ``Information About Your Last Arrival in the United 
States,'' questions: 14.b.-14.f, add the parenthetical ``(if any)'' 
after the requests for recent passport or travel document information.
Form I-914, Supplement A
    DHS received several comments on Form I-914, Supplement A, some of 
which were duplicative of comments received on Form I-914. For the 
following comments, DHS declines to make the requested change for the 
same rationale stated in response to suggestions to revise Form I-914:
     Page 1, part 2, U.S. Physical Address, 2.a.-2.e, include 
instructions informing applicants they could provide a safe mailing 
address instead of their physical address;
     Page 2, part 3, ``Current or Intended U.S. Physical 
Address,'' 4.a.-4.e., include instructions informing applicants they 
could provide a safe mailing address instead of their family member's 
physical address;
     One commenter made a general comment about DHS's proposed 
changes to the inadmissibility questions, stating that the changes 
dramatically expand the scope of information sought without identifying 
the need for the expansion;
     One commenter requested DHS not restrict the forms from 
editing to allow users to have the capability to make comments directly 
on the form.
    Comment: Two commenters repeated their comment on the Form I-914 
that DHS should add language at page 8, ``Applicant's Statement, 
Contact Information, Declaration, Certification, and Signature,'' to 
the paragraph on the authorization of release of information that ``any 
disclosure shall be in accordance with the VAWA confidentiality 
provisions at 8 U.S.C. 1367 and 8 CFR 214.14(e).''
    Response: For the reason discussed above, DHS agrees to add 
language referencing the confidentiality protections included in 8 
U.S.C. 1367.
    The following suggestions were resolved by subsequent revisions to 
the Form I-914, Supplement A:
     Page 3, part 3, ``Information About Your Family Member,'' 
question 16 (asked for ``Your Current Immigration Status or 
Category''), change the question to add ``Family Member's'' after 
``Your'' and delete the reference to ``Category'';
     Page 4, part 3, ``Additional Information About Your Family 
Member,'' question 37 directs the applicant to answer questions 38-
40.g. if the applicant answers question 37 affirmatively and to skip to 
item 41.a. if the applicant answers question 37 negatively. One 
commenter stated that it was not clear whether applicants who respond 
affirmatively to the question must answer question 41.b;
     Page 4, part 3, ``Additional Information About Your Family 
Member,'' question 41.b., add a space to write that the family member 
is currently in removal proceedings;

[[Page 34925]]

     Page 5, part 4, ``Processing Information,'' question 15 
regarding whether the family member has ever ``illicitly (illegally) 
trafficked or benefited from the trafficking of any controlled 
substance, such as chemicals, illegal drugs, or narcotics?,'' remove 
the reference to illegal drugs;
     Page 8, Part 5, ``Applicant's Statement, Contact 
Information, Declaration, Certification, and Signature,'' item 8.a., 
remove requirement of a signature from an applicant's family members 
who are not in the United States.
Form I-914 Instructions
    DHS received several comments on the Form I-914 Instructions, many 
of which were duplicative of comments received on the Form I-914. For 
the following comments, DHS declines to make the requested changes for 
the same rationale discussed in response to comments on Form I-914:
     Page 4, part 2, ``General Information About You 
(Victim),'' items 4.a.-4.e., ``U.S. Physical Address,'' and items 5.a.-
5.f., ``Safe Mailing Address;'' page 7, ``Specific Instruction for Form 
I-914, Supplement A,'' part 2, ``General Information About You 
(Principal Applicant (Victim)),'' items 2.a.-3.e., ``U.S. Physical 
Mailing Address'' and items 3.a.-3.f., ``Safe Mailing Address,'' 
commenters requested DHS include instructions informing applicants that 
could provide a safe mailing address in lieu of their physical address 
and just provide the ZIP code of their physical address to ensure a 
biometrics appointment near their physical location.
    DHS provides individualized responses to the remaining comments.
    Comment: Commenters recommended several changes to the description 
of the adult or minor children at page 2, item 2.C.3 including deleting 
the parenthetical phrase specifying the relationship of the adult or 
minor children to the applicant's family members. The commenters made a 
similar recommendation at page 14, ``Evidence to Establish T 
Nonimmigrant Status For Your Family Member,'' item 3.C. The commenters 
stated that applicants and advocates often struggle with understanding 
the ``derivative of a derivative'' category and stated that removing 
this language will simplify the description and avoid confusion.
    Response: DHS appreciates the complex nature of this category of 
eligible family members and the value of simplifying instructions but 
believes the additional information could be helpful to applicants in 
confirming the meaning of the description of the eligible family 
members.
    Comment: At page 4, part 2, ``General Information About You 
(Victim),'' items 1.a.-1.c., ``Your Full Legal Name,'' and page 7, part 
2, ``General Information About You (Principal Applicant (Victim)),'' 
items 1.a.-1.c., ``Your Full Legal Name,'' commenters recommended DHS 
delete its request for the applicant's and family member's legal name 
as shown on the individual's ``birth certificate or legal name change 
document.'' The commenter stated that some trafficking survivors do not 
have access to identity documents with the applicant's legal name and 
that the current text could create an evidentiary barrier for victims 
who do not have these documents.
    Response: As discussed previously in response to this same comment 
to the Form I-914 instructions published on December 20, 2016, it is 
essential for DHS to know the name of the applicant or their family 
member as it appears on official identification documents so that DHS 
can conduct proper background checks and ensure there is no confusion 
about the identity of the person receiving the status, if approved. 
Neither this explanation nor the questions on the form indicate that 
evidence of a birth certificate or legal name change document is a 
requirement to obtain status. DHS has already amended the language to 
state ``birth certificate, passport, or other legal document.'' 
Furthermore, the requirement does not in any way impact an applicant's 
evidentiary burden.
    Comment: At page 4, part 2, ``General Information About You 
(Victim),'' item 9, which requests the applicant's gender, commenters 
consistent with comments to Form I-914 and Form I-914, Supplement A, 
requested an instruction regarding an additional checkbox for 
applicants who identify as transgender or, as one commenter stated, ``a 
non-binary option for LGBTQI applicants.'' Another commenter also made 
a similar comment at page 8, part 3, ``Information about Your Family 
Member,'' item 8, ``Gender.''
    Response: For the rationale discussed above in response to similar 
comments on Form I-914, DHS will make this change.
    Comment: At page 5, items 14.a.-14.f., ``Passport and Travel 
Document Numbers,'' commenters suggested making changes to this 
instruction on providing passport and travel document information to 
take into account the fact that trafficking survivors often do not have 
these documents and that having a passport is not required to apply for 
T nonimmigrant status. One of the commenters made a similar comment at 
page 10, ``Specific Instructions for Form I-914, Supplement A.''
    Response: DHS agrees that many trafficking victims may lack access 
to passports or travel documentation, and, therefore, adds to the 
instructions at both pages for applicants to provide the passport and 
travel document information ``if applicable and if known.''
    Comment: One commenter requested that DHS add a similar instruction 
in relation to questions about the applicant's last arrival into the 
United States and the applicant's current immigration status or 
category at page 5, item 15.-16.b., ``Information About Your Last 
Arrival in the United States'' and item 17, ``Current Immigration 
Status or Category.''
    Response: DHS declines to adopt this recommendation. This 
information should be reasonably available to the applicant, as it does 
not require the applicant to have particular documents in their 
possession. If an applicant does not know the information, the 
applicant can write ``unknown'' and provide an explanation.
    Comment: About page 6, part 5, ``Processing Information,'' 
commenters requested DHS delete instructions to answer each question 
about the applicant's criminal history regardless of whether the 
criminal records were sealed or otherwise cleared. One of the 
commenters also made this suggestion in reference to page 10, 
``Specific Instructions for Form I-914, Supplement A,'' part 4, 
``Processing Information,'' items 1.a.-44.c. Both commenters stated the 
language was unduly burdensome, confusing to trafficking survivors, and 
assumes applicants have sufficient legal knowledge to respond 
accurately. One of the commenters also recommended deleting the 
instruction at page 6, part 5, ``Processing Information,'' for 
applicants to answer affirmatively to the questions about their 
conduct, regardless of whether the actions or offenses occurred in the 
United States or anywhere in the world. Another commenter requested DHS 
add an instruction at page 6, part 5, ``Processing Information,'' that 
applicants could answer questions about their conduct in the negative 
if their conduct involved prostitution that they were forced to engage 
in by their trafficker.
    Response: DHS declines to delete any language from these 
instructions. All of an applicant's prior conduct is relevant to the 
adjudication of their application and DHS can consider any extenuating 
circumstances such as forced criminal conduct or other circumstances 
that

[[Page 34926]]

may have led to the applicant's records being sealed or criminal 
history being cleared.
    Comment: At page 7, ``Specific Instructions for Form I-914, 
Supplement A,'' one commenter recommended throughout that DHS replace 
the use of the pronouns ``his'' and ``hers'' with ``family member'' or 
``derivative'' to provide more clarity to the applicant.
    Response: DHS has revised the use of pronouns to be gender neutral 
throughout but declines to adopt this suggestion because DHS believes 
the use of pronouns is clear.
    Comment: At page 11, ``Specific Instructions for Form I-914, 
Supplement B,'' one commenter suggested adding an instruction that if 
applicants do not submit the Form I-914, Supplement B, they should 
provide alternative evidence to show victimization and cooperation with 
law enforcement. Another commenter suggested that DHS add a similar 
instruction but recommended that it state that applicants ``must'' 
provide additional evidence to show victimization and cooperation with 
law enforcement. The commenters also suggested referring applicants to 
the section of the Form I-914, Supplement B Instructions on ``Evidence 
of Cooperation with Reasonable Requests from Law Enforcement'' for 
additional information. The commenters expressed that the language 
would clarify that the I-914 Supplement B is not required and is no 
longer considered primary evidence and would prompt applicants to 
consider providing alternate evidence.
    Response: DHS had already included an instruction that applicants 
may provide other evidence and directs applicants to the relevant 
portion of the Form I-914, Supplement B Instructions; however, to 
emphasize that applicants must provide evidence to show victimization 
and cooperation with law enforcement, DHS has revised the language to 
state that an applicant ``must'' provide other evidence.
    Comment: At page 11, ``What Evidence Must You Submit?,'' commenters 
suggested that the initial paragraph state that applicants may submit 
``any credible evidence'' in accordance with 8 CFR 214.11(d)(2)(ii) 
(new 8 CFR 214.204). In addition, the commenters suggested adding 
language that the application may not be denied for failure to submit 
particular evidence, but only if the evidence that was submitted was 
not credible or otherwise failed to establish eligibility and that the 
``any credible evidence'' standard is discretionary. Commenters also 
suggested including mention of the ``any credible evidence'' standard 
in the ``General Instructions'' at page 2.
    Response: DHS agrees that it is important to mention the ``any 
credible evidence'' standard and has added language in the form 
instructions to describe the standard. DHS is not adding language on 
the standard in the ``General Instructions'' at page 2 as one mention 
should be sufficient.
    Comment: At page 12, ``Evidence of Cooperation with Reasonable 
Requests from Law Enforcement,'' in the introductory paragraph, 
commenters requested DHS amend the sentence specifying that it is 
USCIS' role to decide whether the applicant meets the eligibility 
requirements for T nonimmigrant status. The commenter suggested DHS 
include the phrase ``regardless of whether [the] LEA choose[s] to 
investigate or prosecute the trafficking crime.'' Commenters stated 
that the proposed language would further clarify that USCIS has the 
final determination of whether an applicant is eligible for T 
nonimmigrant status and that this determination is not dependent on a 
declaration from law enforcement. One commenter added that this 
proposed language will provide clarity to applicants that an LEA's 
unwillingness to sign a Form I-914, Supplement B should not be a 
deterrent to filing the application for T nonimmigrant status and to 
provide additional reassurance to LEAs that the Form I-914, Supplement 
B is not a determination of an individual's eligibility to obtain T 
nonimmigrant status.
    Response: DHS declines the suggested change. The introductory 
paragraph clearly states that Form I-914, Supplement B is not required, 
and states that eligibility for T nonimmigrant status is not dependent 
upon whether the LEA pursues an investigation or prosecution. It also 
already states that USCIS determines whether an applicant meets the 
eligibility requirements.
    Comment: At page 16, ``Waiver of Grounds of Inadmissibility,'' 
commenters suggested the inclusion of the standards that USCIS uses in 
determining whether an applicant or their family member is eligible for 
a waiver of inadmissibility. The commenters stated this addition will 
provide clarity that the applicant may be eligible to receive a waiver 
and provides additional guidance on when USCIS will use its discretion 
to waive grounds of inadmissibility.
    Response: DHS declines to make this change. The suggested language 
conflates two different waiver standards included in section 212(d)(3) 
and (d)(13) of the INA, 8 U.S.C. 1182(d)(3), (d)(13). The ``Waiver of 
Grounds of Inadmissibility'' section was added for contextual 
information. The standards and requirements for a waiver are discussed 
in detail on the separate inadmissibility waiver application forms. The 
standards and requirements that apply are too detailed and complex to 
include in these form instructions.
    Comment: At page 16, ``What is the Filing Fee?,'' the Instructions 
state that there is no fee for the Form I-914 and commenters 
recommended adding a discussion of fees for other related forms, 
available fee waivers and where to find more information on these 
topics, to provide clear guidance on where more information can be 
obtained.
    Response: DHS appreciates the suggestions but declines to adopt 
them. The information provided on fees and fee waivers for all related 
forms is sufficiently specified through vehicles such as the USCIS 
website or Form G-1055, Fee Schedule.
    Comment: One commenter requested DHS include information earlier in 
the ``General Instructions'' on the 8 U.S.C. 1367 protections related 
to disclosure and to the prohibitions on using information provided 
solely by a perpetrator. The commenter also requested DHS include 
information on which agency the applicant should contact with questions 
or concerns about confidentiality violations.
    Response: DHS believes the Instructions only need to mention the 8 
U.S.C. 1367 protections once. DHS does not believe it is necessary to 
include information on which agency to contact if the applicant has 
questions or concerns about confidentiality violations because that is 
outside the scope of instructions for completing a form. In addition, 
USCIS provides information on its website on how to make a complaint 
about employee misconduct.
    The following suggestions were resolved by subsequent revisions to 
the Form I-914 Instructions:
     Page 1, ``Principal Applicant,'' question 1.C., add 
language about enforcement agencies with the authority to detect or 
investigate trafficking crimes.
     Page 1, ``Who May File Form I-914?,'' item 2, ``Principal 
Applicant Filing for Eligible Family Members at the Same Time,'' delete 
the phrase ``at the same time'' from this title and the instruction, 
and add an instruction that the applicant may file a Supplement A with 
an initial application or at a later time;

[[Page 34927]]

     Page 3, ``General Instructions,'' ``Copies,'' delete the 
statement that USCIS may destroy original documents that are submitted 
when not required or requested;
     Page 10, part 5, ``Applicant's Statement, Contact 
Information, Declaration, Certification, and Signature,'' ``NOTE;'' 
page 11, ``Initial Evidence,'' item 4; page 11, ``Initial Evidence,'' 
second item 1, remove requirement that all eligible family members sign 
the Supplement A;
     Page 10, part 5, ``Applicant's Statement, Contact 
Information, Declaration, Certification, and Signature,'' ``Note;'' 
page 11, ``Initial Evidence,'' delete the instruction that all family 
members must sign Form I-914, Supplement A;
     Page 11, ``What Evidence Must You Submit?,'' delete the 
first two sentences of the initial paragraph, which instruct applicants 
to submit all evidence requested in the Instructions and warns that a 
failure to provide required evidence could result in a rejection or 
denial of the application;
     Page 15, ``Unavailable Documents,'' delete language that 
suggests applicants can provide secondary evidence if a required 
document is not available and that USCIS may require a certification 
from an appropriate civil authority if a necessary document is 
unavailable;
     Page 17, ``Processing Information,'' ``Confidentiality,'' 
add examples of the entities to which an applicant's information could 
be disclosed under 8 U.S.C. 1367.
Form I-914, Supplement B
    DHS received three comments on Form I-914, Supplement B, two of 
which are similar to comments made on Form I-914 and Form I-914, 
Supplement A regarding questions about the gender of applicants and 
family members at page 1, part 1, ``Victim Information,'' ``Other 
Information About Victim,'' question 8. For the same reasons discussed 
above, DHS will instruct that responses to questions about the 
applicant's gender on Form I-914, Supplement B reflect the gender with 
which the applicant identifies.
    The following suggestion was resolved by subsequent revisions to 
the Form I-914, Supplement B:
     Page 2, part 3, ``Statement of Claim,'' ``Type of 
Trafficking,'' question 1.e., remove the option for law enforcement to 
indicate a belief that the applicant is not a victim of trafficking.
Form I-914, Supplement B Instructions
    Comment: For page 1, ``What is the Purpose of Form I-914, 
Supplement B?,'' ``Description,'' commenters suggested DHS move to the 
beginning of the second paragraph under this heading the language that 
USCIS, not the LEA, makes the decision regarding whether the applicant 
meets the eligibility requirements for T nonimmigrant status and add a 
phrase that signing a Supplement B does not lead to automatic approval 
of the T visa application. The commenters wrote that the changes would 
correct the misconception that criminal charges or convictions were 
needed before Form I-914, Supplement B could be signed and that signing 
a Supplement B would lead to the automatic approval of an immigration 
benefit. Another commenter suggested adding language that officers can 
sign the Form I-914, Supplement B even if there is no investigation 
opened. That commenter stated that the existing language in the Form I-
914, Supplement B Instructions has not been sufficient to empower some 
law enforcement agents to sign the Form I-914, Supplement B if a 
prosecuting authority decides not to open a case. The commenter also 
suggested DHS add detailed language about the compliance with 
reasonable law enforcement requests requirement to give examples of 
sufficient cooperation and include language that there is a presumption 
of compliance for applicants who reported the trafficking incident and 
had not denied any reasonable requests for assistance.
    Response: For reasons discussed previously in response to similar 
suggestions when the Form I-914, Supplement B Instructions were 
published on December 20, 2016, DHS declines to make these changes. The 
instructions on page 1 in the third paragraph under the heading, ``When 
Should I Use Form I-914, Supplement B?'' clearly state that a formal 
investigation is not a requirement for an LEA to sign the form. DHS 
does not believe it is necessary to provide more detail regarding the 
compliance with reasonable law enforcement requests requirement. Law 
enforcement decides at its own discretion whether to provide a Form I-
914, Supplement B, and an applicant does not have to submit Form I-914, 
Supplement B to receive T nonimmigrant status. The regulations do not 
include a presumption of compliance with reasonable law enforcement 
requests, and DHS declines to include language to that effect in the 
Form I-914, Supplement B Instructions.
    DHS also declines to adopt the recommendation to move the language 
about USCIS' role in the adjudication process. DHS believes it is 
appropriate to describe the purpose of Form I-914, Supplement B before 
clarifying the respective roles of USCIS and the LEA signing the form. 
DHS also does not believe it is necessary to add a phrase that signing 
does not lead to automatic approval of the application for T 
nonimmigrant status. The Form I-914, Supplement B Instructions already 
state that by providing a Supplement B, the LEA is not giving an 
immigration benefit.
    Comment: For page 1, ``When Should I Use Form I-914, Supplement 
B?,'' one commenter requested that DHS not use the phrase ``on account 
of'' but ``as a result of'' when describing the physical presence on 
account of trafficking eligibility requirement. The commenter stated 
that the phrase is a legal term of art that will generate confusion and 
will dissuade law enforcement agents from signing a Form I-914, 
Supplement B.
    Response: DHS agrees with the commenter and has changed this 
language for consistency.
    Comment: Regarding page 3, part 1, ``Victim Information,'' items 
1.a.-1.c., ``Full Legal Name of Victim,'' commenters repeated a request 
made in connection with the Form I-914 and the Form I-914, Supplement A 
to delete instructions to provide the applicant's name as shown on 
their birth certificate or legal name change document.
    Response: As discussed previously, DHS declines to make this 
change, but has revised the question to include ``other legal 
documents.''
    Comment: Regarding page 3, part 1, ``Victim Information,'' item 8, 
``Gender,'' commenters provided similar suggestions to those made on 
Form I-914 and Form I-914, Supplement A regarding providing additional 
options to respond to the question about the applicant's gender.
    Response: For the same reasons discussed previously, DHS will 
instruct that the response reflect the gender with which the applicant 
identifies.
    Comment: For page 4, ``General Instructions,'' items 10.-12.b., one 
commenter stated that asking for the case number, case status, and, if 
applicable, the FBI Universal Control Number or State Identification 
Number is likely to dissuade LEAs from signing a Form I-914 Supplement 
B because they will believe they need to have an identifying case 
number associated with the investigation. The commenter suggested 
adding language that to sign a Form I-914, Supplement B, an 
investigation consisting of an initial report is sufficient, and no 
case number is required.
    Response: DHS does not believe that asking for this information 
will dissuade LEAs from providing a Form I-914,

[[Page 34928]]

Supplement B. The ``General Instructions'' at page 2 make it clear that 
if the LEA does not have certain information, the LEA can leave the 
field blank. The Form I-914, Supplement B Instructions at page 1 
clarify that the LEA does not necessarily need to formally launch an 
investigation or file charges to provide a Form I-914, Supplement B. In 
addition, the instructions indicate this information should be filled 
out only if applicable. DHS will retain the question because the case 
identifying information is helpful if USCIS needs to inquire further 
with the LEA about the case.
    Comment: About page 4, part 3, ``Statement of Claim,'' items 1.a.-
1.e., ``Type of Trafficking,'' one commenter stated that the options 
available to LEAs to choose which type of trafficking occurred do not 
account for sex or labor trafficking that did not result in a completed 
sex act or completed labor/service.
    Response: DHS agrees and has added a statement clarifying that 
victims of attempted labor or sex trafficking can be considered victims 
of a severe form of trafficking in persons.
    Comment: Regarding page 4, part 3, ``Statement of Claim,'' item 2, 
``Victimization Description,'' LEAs are instructed to identify the 
relationship between the victimization and the crime under 
investigation or prosecution. One commenter requested the instructions 
clarify that the LEA's own investigation independently satisfies the 
threshold and that a separate investigation opened by a prosecutor is 
not required.
    Response: DHS feels that the Instructions do not suggest the need 
for a separate investigation or prosecution and do not need to be 
changed.
    Comment: At page 4, part 3, ``Statement of Claim,'' items 3.a.-
3.b., ``Fear of Retaliation or Revenge,'' the instruction asks LEAs to 
indicate whether the applicant has expressed any fear of retaliation or 
revenge if removed from the United States. One commenter stated that it 
was unlikely that many victims will feel comfortable enough to provide 
much detail to LEAs about why they fear returning to their home country 
but did not recommend any specific changes.
    Response: DHS does not believe any change is necessary. In some 
cases, trafficking victims may share information with LEAs about what 
they fear will happen to them if removed from the United States. In 
other cases, as the commenter stated, they may not. The instruction 
asks for the information if it exists and, if it is shared, it can help 
adjudicators understand the full facts of a case. If the LEA has no 
information about this topic and applicants want to show they have such 
a fear, they can submit other relevant credible evidence.
    Comment: Regarding page 5, part 5, ``Family Members Implicated in 
Trafficking,'' one commenter expressed that requiring LEAs to include 
the names of family members ``who they believe to be affected by the 
trafficking may instill fear and uncertainty in a survivor's mind.'' 
The commenter stated that applicants may not want to disclose this 
information initially, and it could come out later creating the 
appearance of an inconsistency and affect their credibility.
    Response: DHS understands trafficking victims may be hesitant to 
admit that a family member was involved in their trafficking; however, 
DHS will maintain this question. Again, the Form I-914, Supplement B 
Instructions do not require this information, and whether the 
information exists does not directly impact an applicant's eligibility 
for T nonimmigrant status. However, if an LEA has this information, it 
can help USCIS understand the full facts of an applicant's 
victimization. The information may also be relevant to the family 
member's eligibility for derivative T nonimmigrant status, as section 
214(o)(1) of the INA, 8 U.S.C. 1184(o)(1), provides that an individual 
is ineligible for admission to the United States as a T nonimmigrant if 
there is substantial reason to believe they have committed an act of a 
severe form of trafficking in persons. If the family member is an 
immigrant USCIS may be able to use the information provided to deny or 
revoke immigration status if appropriate.
    The following suggestions were resolved by subsequent revisions to 
the Form I-914, Supplement B Instructions:
     Page 1, ``What is the Purpose of Form I-914, Supplement 
B?,'' ``Description,'' add language that ``a formal investigation or 
prosecution is not required in order for a LEA to complete an 
endorsement'';
     Page 3, part 1, ``Victim Information,'' items 4-6, add 
that LEAs should provide this information if known;
     Page 4, part 3, ``Statement of Claim,'' items 1.a.-1.e., 
``Type of Trafficking,'' remove the option for an LEA to indicate that 
the applicant for T nonimmigrant status is not a victim of trafficking;
     Page 4, part 4, ``Cooperation of the Victim,'' add that 
the victim must provide additional evidence if they claim they are 
unable to cooperate with law enforcement requests for assistance.
3. Changes to Form I-914, Form I-765, and Related Forms and 
Instructions Published With Final Rule
a. Discretionary and Technical Changes to Form I-914 Package
i. Overarching Changes
    To improve readability, DHS made non-substantive edits to 
questions, headings and narrative in the forms and the associated 
instructions. DHS revised all forms and associated instructions to use 
gender neutral language. DHS has also updated all references to the 
regulations.
    Throughout the forms and instructions, DHS has revised the 
reference to law enforcement officials to match the new definition 
found at new 8 CFR 214.201.
    On the Form I-914 and Form I-914, Supplement A, in the ``For USCIS 
Use Only'' section, DHS changed its reference from ``Conditional 
Approval'' to ``Waitlisted,'' which is a more accurate descriptor for 
this internal process.
ii. Specific Form Changes
Form I-914
    At new page 3, part 3, ``Additional Information,'' item 6, DHS has 
revised the question to read that the applicant was under 18 years of 
age at the time at least one of the acts of trafficking occurred, and 
as discussed above, has removed the parenthetical instructing the 
applicant to skip item 7 if they answered yes to item 6. The relevant 
inquiry is the applicant's age at the time at least one of the acts of 
trafficking occurred, not at the time of filing, as clarified in the 
Preamble and the regulations. Similarly, in item 7, DHS has added that 
an explanation of why an individual did not comply with reasonable 
requests for assistance is only required if the individual was over the 
age of 18 at the time one of the acts of trafficking occurred.
    At new page 7, part 5, ``Information About Your Family Members,'' 
DHS has added ``Information About Your Spouse'' to item 1 to clarify 
that the information being requested (date of birth, country of birth, 
etc.) is for the applicant's spouse. DHS has also renumbered the items, 
and under ``Information About Your Children,'' has deleted 
``relationship,'' as the relationship should always be ``child.''
    DHS deleted language at the end of part 5 of Form I-914 regarding 
completion of Form I-914, Supplement A. This language is unnecessary to 
include in the form as the Form I-914 Instructions provide clear 
guidance on the topic.

[[Page 34929]]

    As previously discussed, in updating standard language at new page 
9, ``Applicant's Declaration and Certification,'' DHS added language so 
that the applicant understands that any disclosure will be in 
accordance with the confidentiality protections contained in 8 U.S.C. 
1367 and new 8 CFR 214.216.
    At new page 11, part 9, ``Additional Information,'' DHS has added 
``if any'' after A-Number and instructed the applicant to sign and date 
each additional sheet of paper included with the application. These 
additions will help ensure the integrity of additional sheets included 
with the application.
Form I-914, Supplement A
    DHS has revised the name of the Supplement A to ``Application for 
Derivative T Nonimmigrant Status,'' as the prior title incorrectly 
implied that the application could only be filed by family members of 
T-1 recipients, rather than T-1 applicants or recipients.
    As discussed above, DHS has combined part 1 and part 2, such that 
they both are now under new part 1, ``Family Members for Whom You Are 
Filing,''
    At new page 2, part 4, ``Information About Your Family Member,'' 
DHS has revised item 2, ``Other Names Used'' to state that the 
applicant should provide any other names ``your family member has 
used'' rather than ``you have used.'' This clarifies the information 
being sought.
    At new page 5, part 5, ``Processing Information,'' DHS has revised 
the first paragraph for clarity.
    DHS made the same additions in the Form I-914, Supplement A 
regarding release of information to new page 9, ``Applicant's 
Declaration and Certification'' that it made to the same section in 
Form I-914 and for the same reasons as discussed in the previous 
section discussing changes to Form I-914. In the same section, at the 
end of the paragraph just prior to the signature, DHS has added a note 
stating that if a family member is in the United States, they must 
verify the information in Supplement A and sign the Supplement A. 
Stakeholders had indicated confusion over who was required to sign the 
form. Finally, in the Applicant's signature block, DHS included ``(if 
any)'' after the ``Safe Phone Number'' field to indicate the field is 
not required, and revised item 7, to clarify that the signature is for 
the family member for whom the applicant is filing (rather than using 
the less clear terminology of ``derivative'').
Form I-914 Instructions
    As noted previously, DHS has added language at new page 1, ``What 
Is the Purpose of Form I-914?,'' to refer applicants to the language of 
the definition of ``a severe form of trafficking'' included in the 
section ``Evidence to Establish T Nonimmigrant Status,'' to provide 
easy reference to the definition.
    DHS added a note regarding filing for adult or minor children of 
eligible family members at new page 2, ``Who May File Form I-914,'' 
item 2(C)(3) to clarify that although applications for all eligible 
family members can be filed concurrently, USCIS will not approve the 
application for an adult or minor child unless the application for 
derivative T nonimmigrant status for their parent has already been 
approved, consistent with existing policy. USCIS Policy Memorandum, New 
T Nonimmigrant Derivative Category and T and U Nonimmigrant Adjustment 
of Status for Applicants from the Commonwealth of the Northern Mariana 
Islands (Oct. 30, 2014). DHS also added this note at new page 4, 
``Completing Form I-914, Supplement A, Application for Derivative T 
Nonimmigrant Status,'' ``Part 1. Family Member For Whom You Are 
Filing.''
    At new page 2, ``General Instructions,'' DHS has added a note for 
applicants with attorneys who wish to receive communication from USCIS 
about filings related to the I-914, they should include those 
additional form numbers on the Form G-28, Notice of Entry of Appearance 
as Attorney or Accredited Representative.
    At new page 3, part 5, ``Information about Your Family Members,'' 
DHS clarified its guidance that all children regardless of age or 
marital status should be included, which is consistent with the change 
made to the Form I-914, Supplement A.
    DHS had already included an instruction that applicants may provide 
other evidence and directs applicants to the relevant portion of the 
Form I-914, Supplement B Instructions; however, to emphasize that 
applicants must provide evidence to show victimization and cooperation 
with law enforcement, DHS has revised the language at new page 7, 
``Completing Form I-914, Supplement B, Declaration of Law Enforcement 
Officer for Victim of Trafficking in Persons to state that an applicant 
``must'' provide other evidence.
    At new page 7, ``Initial Evidence,'' DHS deleted the instruction to 
submit a copy of the principal applicant's Form I-914 with a Form I-
914, Supplement A, due to enhanced processing procedures. DHS has also 
added an instruction that an applicant must include all evidence at the 
time of filing, and that any credible evidence can be submitted.
    At new page 8, ``Evidence to Establish T Nonimmigrant Status,'' 
item 2, DHS has replaced ``as a result of'' with ``on account of,'' as 
discussed above, for consistency with the regulation. DHS has also 
added a grant of Continued Presence as a type of evidence that can be 
submitted to establish that an individual is or has been a victim of 
trafficking. DHS has also added a note that an applicant may explain 
why they did not provide or attempt to obtain a Supplement B (even 
though it is not required). In addition, DHS has added a list of 
evidence that an applicant may submit to establish tier claim that they 
were unable to cooperate with requests from law enforcement due to 
trauma, or due to their age.
    At new page 9, ``Personal Statement,'' DHS has revised the list of 
what the applicant's personal statement should include, due to changes 
in the regulations relating the contents of the statement at new 8 CFR 
214.204(c).
    At new page 11, DHS has included a personal statement from the 
principal applicant or a derivative family member as an example of 
credible evidence describing the danger of retaliation, due to changes 
in the regulations at new 8 CFR 214.211(f)(3). DHS has also changed the 
section on this page from ``Unavailable Documents'' to ``Required 
Evidence.'' DHS has removed any reference to secondary evidence, as 
well as the list of secondary evidence, and instead instructs that 
applicants may submit any credible evidence, consistent with the 
evidentiary standard USCIS applies.
    At new page 12, ``Initial Processing,'' DHS has added that a Form 
I-914 may also be rejected if the form's required fields are not 
completely filled out or the forms do not include required initial 
evidence. This will support timely applicant notification if USCIS 
determines that they are missing critical information that would 
otherwise delay processing or result in a denial of their request. As a 
result, applicants will have an opportunity to resolve the issue(s) 
with their filing sooner than if USCIS accepted the filing and 
ultimately issued a Request for Additional Evidence or Notice of Intent 
to Deny. Additionally, this will allow USCIS to focus its limited 
resources on cases that are properly completed and filed.
    At new page 12, DHS has added a section titled ``Bona Fide 
Determination Process'' to describe the new, streamlined bona fide 
determination

[[Page 34930]]

process codified at 8 CFR 214.205. At the same page, DHS has also 
revised ``Employment Authorization'' to include reference to the bona 
fide determination process.
Form I-914, Supplement B and Form I-914, Supplement B Instructions
    DHS has changed the title of Form I-914, Supplement B to 
``Declaration for Trafficking Victim'' for simplicity and for ease of 
reference.
    DHS has revised Form I-914, Supplement B at new page 2, part 3, 
``Statement of Claim,'' ``Note:'' to reference the correct regulatory 
provision because USCIS is redesignating these provisions in the final 
rule. DHS has removed the language from part 3, ``Statement of Claim'' 
requesting the LEA attach the results of any name or database inquiry, 
as well as any relevant reports and findings, because this requirement 
was removed from the regulations.
    DHS clarified at new page 4, part 6, ``Attestation,'' that the 
officer signing Form I-914, Supplement B is certifying their belief 
that the individual has been a victim of a severe form of trafficking 
in persons and is not certifying that it is an established fact that 
the individual is a victim.
    DHS has added a new part 7, ``Additional Information,'' and 
included references throughout Form I-914, Supplement B and its 
Instructions to use the new part 7 if extra space is needed to complete 
any section. DHS has revised ``law enforcement officer'' to 
``certifying official'' in recognition of the fact that many 
individuals who complete Supplement B may not consider themselves law 
enforcement officials.
    On new page 2 of the Instructions in the section, ``General 
Instructions,'' DHS has included guidance to leave a field blank if the 
answer to a question is unknown. DHS also added a new section below 
entitled ``Specific Instructions.''
    DHS has clarified at new page 3, part 3, ``Statement of Claim,'' 
item 1, that the official signing the Form I-914, Supplement B should 
base their analysis as to whether an individual is or has been a victim 
of a severe form of trafficking in persons based on the practices to 
which the victim was subjected (as listed in new 8 CFR 214.201), rather 
than any criminal violations or prosecutions.
    At new page 3, part 5, ``Family Members Implicated in 
Trafficking,'' DHS added a ``NOTE:'' and replaced the word ``principal 
applicant'' with ``victim'' based on regulatory changes to terminology.
    Also at new page 3, ``How Can I Provide Further Information at a 
Later Date?,'' DHS has replaced the term ``revoke'' with ``withdraw or 
disavow'' to mirror a change in the wording of the regulations.
    At new page 4, under ``DHS Privacy Notice,'' ``PURPOSE:'' and 
``DISCLOSURE,'' DHS replaced ``you'' with ``the applicant,'' because 
Supplement B is filled out by someone other than the applicant. This 
clarifies that the purpose is to determine the applicant's eligibility, 
and that failure to provide the applicant's information could result in 
denial of their application.
Form I-765 Instructions
    DHS has revised the Form I-765 Instructions to include a section 
titled ``Bona Fide Determination Process for T Nonimmigrant Status 
Principal Applicants and Eligible Family Members.'' This change 
describes the bona fide determination process, including how to obtain 
work authorization, codified at new 8 CFR 214.205.

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 
program, 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, Cultural exchange 
program, Employment, Penalties, Reporting and recordkeeping 
requirements, Students.

    Accordingly, DHS amends chapter I of title 8 of the Code of Federal 
Regulations as follows:

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

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

    Authority: 6 U.S.C. 111, 202(4) and 271; 8 U.S.C. 1101 and note, 
1102, 1103, 1182 and note, 1184, 1185 note (section 7209 of Pub. L. 
108-458, 118 Stat. 3638), 1187, 1223, 1225, 1226, 1227, 1255, 1359; 
8 CFR part 2. Section 212.1(q) also issued under section 702, Pub. 
L. 110-229, 122 Stat. 754, 854.


0
2. Revise Sec.  212.16 to read as follows:


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

    (a) Requesting the waiver. An applicant requesting a waiver of 
inadmissibility under section 212(d)(3)(A)(ii) or (d)(13) of the Act 
must submit an Application for Advance Permission to Enter as a 
Nonimmigrant, or successor 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 section 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 them 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

[[Page 34931]]

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

    Authority: 6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182, 
1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305, 1357 and 1372; sec. 
643, Pub. L. 104-208, 110 Stat. 3009-708; Pub. L. 106-386, 114 Stat. 
1477-1480; 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; Pub. L. 115-
218, 132 Stat. 1547 (48 U.S.C. 1806).


Sec. Sec.  214.1 through 214.15  [Designated as Subpart A]

0
4. Designate Sec. Sec.  214.1 through 214.15 as subpart A and add a 
heading for subpart A to read as follows:

Subpart A--Classes A through S

0
5. Revise Sec.  214.11 to read as follows:


Sec.  214.11  Former regulations for noncitizen victims of severe forms 
of trafficking in persons.

    For DHS and USCIS regulations governing Noncitizen Victims of 
Severe Forms of Trafficking in Persons, see subpart C of this part.

Subpart B--[Added and Reserved]

0
6. Add and reserve subpart B.

0
7. Add subpart C to read as follows:

Subpart C--Noncitizen Victims of Severe Forms of Trafficking in 
Persons

Sec.
214.200 Scope of this subpart.
214.201 Definitions.
214.202 Eligibility for T-1 nonimmigrant status.
214.203 Period of admission.
214.204 Application.
214.205 Bona fide determination.
214.206 Victim of a severe form of trafficking in persons.
214.207 Physical presence.
214.208 Compliance with any reasonable request for assistance in the 
detection, investigation, or prosecution of an act of trafficking.
214.209 Extreme hardship involving unusual and severe harm.
214.210 Annual numerical limit.
214.211 Application for eligible family members.
214.212 Extension of T nonimmigrant status.
214.213 Revocation of approved T nonimmigrant status.
214.214 Removal proceedings.
214.215 USCIS employee referral.
214.216 Restrictions on use and disclosure of information relating 
to applicants for T nonimmigrant classification.


Sec.  214.200  Scope of this subpart.

    This subpart governs the submission and adjudication of an 
Application for T Nonimmigrant Status, including a request by a 
principal applicant on behalf of an eligible family member for 
derivative status.


Sec.  214.201  Definitions.

    Where applicable, USCIS will apply the definitions provided in 
section 103 and 107(e) of the Trafficking Victims Protection Act 
(TVPA), 22 U.S.C. 7102, and 8 U.S.C. 1101, 1182(d), and 1184, 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:
    Abuse or threatened abuse of the legal process means the use or 
threatened use of a law or legal process whether administrative, civil, 
or criminal, in any manner or for any purpose for which the law was not 
designed, in order to exert pressure on another person to cause that 
person to take some action or refrain from taking some action.
    Application for Derivative T Nonimmigrant Status means a request by 
a principal applicant on behalf of an eligible family member for 
derivative T-2, T-3, T-4, T-5, or T-6 nonimmigrant status on an 
Application for T Nonimmigrant Status.
    Application for T Nonimmigrant Status means a request by a 
principal applicant for T-1 nonimmigrant status on the form designated 
by USCIS for that purpose.
    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 their personal services or those of a person 
under their control as a security for debt, if the value of those 
services as reasonably assessed is not applied toward the liquidation 
of the debt or the length and nature of those services are not 
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 they are issued a T-2, T-3, T-4, T-5, or T-6 visa by the 
Department of State and they are admitted to the United States in 
derivative T nonimmigrant status.
    Eligible family member means:
    (1) A family member eligible for derivative T nonimmigrant status 
based on their relationship to a principal applicant or T-1 
nonimmigrant and, if required, upon a showing of a present danger of 
retaliation;
    (2) In the case of a principal applicant or T-1 nonimmigrant who is 
21 years of age or older, the spouse and children of such applicant;
    (3) In the case of a principal applicant or T-1 nonimmigrant under 
21 years of age, the spouse, children, unmarried siblings under 18 
years of age, and parents of such applicant; and
    (4) Regardless of the age of a principal applicant or T-1 
nonimmigrant, any parent or unmarried sibling under 18 years of age, or 
adult or minor child of a derivative of such principal applicant or T-1 
nonimmigrant where the family member faces a present danger of 
retaliation as a result of the principal applicant or T-1 
nonimmigrant's escape from a severe form of trafficking in persons or 
cooperation with law enforcement.
    Involuntary servitude, for the purposes of this part:
    (1) 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; and
    (2) Includes a condition of servitude in which the victim is forced 
to work for the trafficker 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 trafficker 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, Tribal, or 
local law enforcement agency, prosecutor, judge, labor agency, 
children's protective services agency, adult protective services 
agency, or other

[[Page 34932]]

authority that has the responsibility and authority for the detection, 
investigation, and/or prosecution of severe forms of trafficking in 
persons under any administrative, civil, criminal, or Tribal laws. 
Federal LEAs include but are not limited to the following: Department 
of Justice (including U.S. Attorneys' Offices, Civil Rights Division, 
Criminal Division, U.S. Marshals Service, Federal Bureau of 
Investigation (FBI)); U.S. Immigration and Customs Enforcement (ICE), 
U.S. Customs and Border Protection (CBP); Department of State 
(including Diplomatic Security Service); Department of Labor (DOL); 
Equal Employment Opportunity Commission (EEOC); National Labor 
Relations Board (NLRB); Offices of Inspectors General (OIG); Bureau of 
Indian Affairs (BIA) Police, and Offices for Civil Rights and Civil 
Liberties.
    Law Enforcement Agency (LEA) declaration means an official LEA 
declaration submitted on the Declaration for Trafficking Victim.
    Law enforcement involvement, for purposes of establishing physical 
presence, means law enforcement action beyond receiving the applicant's 
reporting and may include the LEA interviewing the applicant or 
otherwise becoming involved in detecting, investigating, or prosecuting 
the acts of trafficking.
    Peonage means a status or condition of involuntary servitude based 
upon real or alleged indebtedness.
    Principal applicant means a noncitizen who has filed an Application 
for T Nonimmigrant Status.
    Request for assistance means a request made by an LEA to a victim 
to assist in the detection, investigation, or prosecution of the acts 
of trafficking in persons or the investigation of a crime where acts of 
trafficking are at least one central reason for the commission of that 
crime. The reasonableness of the request is assessed using the factors 
delineated at Sec.  214.208(c).
    Serious harm means any harm, whether physical or nonphysical, 
including psychological, financial, or reputational harm, that is 
sufficiently serious, under all the surrounding circumstances, to 
compel a reasonable person of the same background and in the same 
circumstances to perform or to continue performing labor or services in 
order to avoid incurring that harm.
    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.
    T-1 nonimmigrant means the victim of a severe form of trafficking 
in persons who has been granted T-1 nonimmigrant status.
    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 a 
noncitizen who is or has been subjected to a severe form of trafficking 
in persons.


Sec.  214.202  Eligibility for T-1 nonimmigrant status.

    An applicant is eligible for T-1 nonimmigrant status under section 
101(a)(15)(T)(i) of the Act if they demonstrate all of the following, 
subject to section 214(o) of the Act:
    (a) Victim. The applicant is or has been a victim of a severe form 
of trafficking in persons, according to Sec.  214.206.
    (b) Physical presence. The applicant is physically present in the 
United States, American Samoa, the Commonwealth of the Northern Mariana 
Islands, or at a port-of-entry thereto, according to Sec.  214.207.
    (c) Compliance with any reasonable request for assistance. The 
applicant has complied with any reasonable request for assistance from 
law enforcement or meets one of the conditions described below. The 
reasonableness of the request is assessed using the factors delineated 
at Sec.  214.208(c).
    (1) Exemption for minor victims. An applicant who was under 18 
years of age at the time at least one act of trafficking occurred is 
not required to comply with any reasonable request for assistance.
    (2) Exception for trauma. An applicant who, due to physical or 
psychological trauma, is unable to cooperate with a reasonable request 
for assistance from law enforcement is not required to comply with such 
reasonable request.
    (d) Hardship. The applicant would suffer extreme hardship involving 
unusual and severe harm upon removal, according to Sec.  214.209.
    (e) Prohibition against traffickers in persons. No applicant will 
be eligible to receive T nonimmigrant status if there is substantial 
reason to believe that the applicant has committed an act of a severe 
form of trafficking in persons.


Sec.  214.203  Period of admission.

    (a) 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.
    (b) 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 
expiration date of the initial period approved for the T-1 principal 
applicant, except as provided in section 214(o)(7) of the Act.
    (c) Notice. At the time an applicant is approved for T nonimmigrant 
status or receives an extension of T nonimmigrant status, USCIS will 
notify the applicant when their T nonimmigrant status will expire. 
USCIS also will notify the applicant that the failure to apply for 
adjustment of status to lawful permanent resident during the period of 
T nonimmigrant status, as set forth in 8 CFR 245.23, will result in 
termination of the applicant's T nonimmigrant status in the United 
States at the end of the 4-year period or any extension.


Sec.  214.204  Application.

    (a) Jurisdiction. USCIS has sole jurisdiction over all applications 
for T nonimmigrant status.
    (b) Filing an application. An applicant 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 (c) of this section.
    (1) Applicants in pending immigration proceedings. (i) An applicant 
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.
    (ii) In its discretion, ICE may exercise prosecutorial discretion, 
as appropriate, while USCIS adjudicates the Application for T 
Nonimmigrant Status, including applications for derivatives.
    (2) Applicants with final orders of removal, deportation, or 
exclusion. An applicant subject to a final order of removal, 
deportation, or exclusion may file an Application for T Nonimmigrant 
Status directly with USCIS.

[[Page 34933]]

    (i) 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 applicant may request an administrative stay of 
removal pursuant to 8 CFR 241.6(a).
    (ii) If the applicant 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.
    (iii) If USCIS subsequently determines under the procedures in 
Sec.  214.205 that the application is bona fide, the final order of 
removal, deportation, or exclusion will be automatically stayed, and 
the stay will remain in effect until a final decision is made on the 
Application for T Nonimmigrant Status.
    (3) Referral of applicants for removal proceedings. USCIS generally 
will not refer an applicant for T nonimmigrant status for removal 
proceedings while the application is pending or following denial of the 
application, absent serious aggravating circumstances, such as the 
existence of an egregious criminal history, a threat to national 
security, or where the applicant is complicit in committing an act of 
trafficking.
    (4) Minor applicants. When USCIS receives an application from a 
principal applicant under the age of 18, USCIS will notify the 
Department of Health and Human Services to facilitate the provision of 
interim assistance.
    (c) Initial evidence. An Application for T Nonimmigrant Status must 
include:
    (1) A detailed, signed personal statement from the applicant, in 
their own words, addressing:
    (i) The circumstances surrounding the applicant's victimization, 
including:
    (A) The nature of the victimization; and
    (B) To the extent possible, the following:
    (1) When the victimization occurred;
    (2) How long the trafficking lasted;
    (3) How and when they escaped, were rescued, or otherwise became 
separated from the traffickers;
    (4) The events surrounding the trafficking;
    (5) Who was responsible for the trafficking; and
    (6) The circumstances surrounding their entry into the United 
States, if related to the trafficking;
    (ii) How the applicant's physical presence in the United States 
relates to the trafficking; (iii) The hardship, including harm or 
mistreatment the applicant fears if they are removed from the United 
States; and
    (iv) Whether they have complied with any reasonable law enforcement 
request for assistance and whether any criminal, civil or 
administrative records relating to the acts of trafficking exist, if 
known, (or if applicable, why the age exemption or trauma exception 
applies); and
    (2) Any credible evidence that supports any of the eligibility 
requirements set out in Sec. Sec.  214.206 through 214.208.
    (d) Inadmissible applicants. If an applicant is inadmissible to the 
United States, they must submit a request for a waiver of 
inadmissibility on the Application for Advance Permission to Enter as a 
Nonimmigrant, or successor form as designated by USCIS accordance with 
8 CFR 103.2, in accordance with form instructions and 8 CFR 212.16, and 
accompanied by supporting evidence.
    (e) Evidence from law enforcement. An applicant may wish to submit 
evidence from an LEA to help establish eligibility, including 
victimization and the compliance with reasonable requests for 
assistance. An LEA declaration:
    (1) Is optional evidence;
    (2) Is not given any special evidentiary weight;
    (3) Does not grant an immigration benefit and does not lead to 
automatic approval of the Application for T Nonimmigrant Status;
    (4) Must be submitted on the ``Declaration for Trafficking 
Victim,'' and must be signed by a supervising official responsible for 
the detection, investigation, or prosecution of severe forms of 
trafficking in persons;
    (5) Is completed at the discretion of the certifying official; and
    (6) Does not require that a formal investigation or prosecution be 
initiated.
    (f) Any credible evidence. All evidence demonstrating cooperation 
with law enforcement will be considered under the any credible evidence 
standard.
    (g) USCIS determination. 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.
    (h) Disavowed or withdrawn LEA declaration. An LEA may disavow or 
withdraw the contents of a previously submitted declaration and should 
provide a detailed explanation of its reasoning in writing. After 
disavowal or withdrawal, the LEA declaration generally will no longer 
be considered as evidence of the applicant's compliance with requests 
for assistance in the LEA's detection, investigation, or prosecution, 
but may be considered for other purposes.
    (i) Continued Presence. An applicant granted Continued Presence 
under 28 CFR 1100.35 should submit documentation of the grant of 
Continued Presence. If revoked, the grant of Continued Presence will 
generally no longer be considered as evidence of the applicant's 
compliance with requests for assistance in the LEA's investigation or 
prosecution but may be considered for other purposes.
    (j) 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. An applicant may also note that such 
evidence is contained in their immigration file.
    (k) Biometric services. All applicants for T-1 nonimmigrant status 
must submit biometrics in accordance with 8 CFR 103.16.
    (l) Evidentiary standards, standard of proof, and burden of proof. 
(1) The burden is on the applicant to demonstrate eligibility for T-1 
nonimmigrant status by a preponderance of the evidence. The applicant 
may submit any credible evidence relating to a T nonimmigrant 
application for consideration by USCIS.
    (2) USCIS will conduct a review of all evidence and may investigate 
any aspect of the application.
    (3) Evidence previously submitted by the applicant for any 
immigration benefit request 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.
    (4) USCIS will consider the totality of the evidence the applicant 
submitted and other evidence available to USCIS in evaluating an 
Application for T Nonimmigrant Status.
    (m) Bona fide determination. Once an applicant submits an 
Application for T Nonimmigrant Status or Application for Derivative T 
Nonimmigrant Status, USCIS will conduct an initial review to determine 
if the application is bona fide under the provisions of Sec.  214.205. 
USCIS will conduct an initial review of an eligible family member's 
Application for Derivative T Nonimmigrant Status to determine if the 
application is bona fide if the principal's Application for T 
Nonimmigrant Status has been deemed bona fide.
    (n) Decision. After completing its review of the application and 
evidence, USCIS will issue a decision approving

[[Page 34934]]

or denying the application in accordance with 8 CFR 103.3.
    (o) 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 Sec.  214.210. 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 declaration and the Department of 
Health and Human Service's Office of Refugee Resettlement, consistent 
with 8 U.S.C. 1367.
    (1) 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.
    (2) 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 of Immigration Appeals (Board) may 
seek rescission 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.
    (3) Employment authorization. An individual granted T-1 
nonimmigrant status is authorized to work incident to status. An 
applicant does not need to file a separate Application for Employment 
Authorization to be granted employment authorization. USCIS will issue 
an initial Employment Authorization Document (EAD) to such T-1 
nonimmigrants for the duration of the T-1 nonimmigrant status. An 
applicant granted T-1 nonimmigrant status seeking to replace an EAD 
that was lost, stolen, or destroyed must file an Application for 
Employment Authorization in accordance with form instructions.
    (p) Travel abroad. In order to return to the United States after 
travel abroad and continue to hold T-1 nonimmigrant status, a T-1 
nonimmigrant must be granted advance parole pursuant to section 
212(d)(5) of the Act prior to departing the United States.
    (q) 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 declaration 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.
    (1) 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.
    (2) 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.
    (3) 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.


Sec.  214.205  Bona fide determination.

    (a) Bona fide determinations for principal applicants for T 
nonimmigrant status. If an Application for T Nonimmigrant Status is 
submitted after August 28, 2024, USCIS will conduct an initial review 
to determine if the application is bona fide.
    (1) Request for evidence. If an Application for T Nonimmigrant 
Status was pending as of August 28, 2024, and additional evidence is 
required to establish eligibility for principal T nonimmigrant status, 
USCIS will issue a request for evidence, and conduct a bona fide review 
based on available evidence.
    (2) Initial review criteria. After initial review, USCIS will deem 
an Application for T Nonimmigrant Status bona fide if:
    (i) The applicant has submitted a properly filed and complete 
Application for T Nonimmigrant Status;
    (ii) The applicant has submitted a signed personal statement; and
    (iii) The results of initial background checks are complete, have 
been reviewed, and do not present national security concerns.
    (3) Secondary review criteria. If initial review does not establish 
an Application for T Nonimmigrant Status is bona fide, USCIS will 
conduct a full T nonimmigrant status eligibility review. An Application 
for T Nonimmigrant Status that meets all eligibility requirements will 
be approved, or if the statutory cap has been reached, will receive a 
bona fide determination.
    (b) Bona fide determinations for eligible family members in the 
United States. Once a principal applicant's application has been deemed 
bona fide, USCIS will conduct an initial review for any eligible family 
members in the United States who have filed an Application for 
Derivative T Nonimmigrant Status to determine whether their 
applications are bona fide.
    (1) If an Application for Derivative T Nonimmigrant Status was 
pending as of August 28, 2024, and additional evidence is required to 
establish eligibility for derivative T nonimmigrant status, USCIS will 
issue a request for evidence and conduct a bona fide review based on 
available evidence.
    (2) After initial review, USCIS will determine an Application for 
Derivative T Nonimmigrant Status is bona fide if:
    (i) The eligible family member is in the United States at the time 
of the bona fide determination;
    (ii) The principal applicant or T-1 nonimmigrant has submitted a 
properly filed and complete Application for Derivative T Nonimmigrant 
Status;
    (iii) The Application for Derivative T Nonimmigrant Status is 
supported by credible evidence that the derivative applicant qualifies 
as an eligible family member; and
    (iv) Initial background checks are complete, have been reviewed, 
and do not present national security concerns.
    (3) If initial review does not establish an Application for 
Derivative T Nonimmigrant Status is bona fide, USCIS will conduct a 
full T nonimmigrant status eligibility review. An Application for 
Derivative T Nonimmigrant Status that meets all eligibility 
requirements during this secondary review will be approved, or if the 
statutory cap has been reached, will receive a bona fide determination.
    (c) Notice of USCIS determination. If USCIS determines that the 
Application for T Nonimmigrant Status or Application for Derivative T 
Nonimmigrant Status is bona fide under this section, USCIS will issue 
written notice of that determination, and inform the applicant that 
they may be considered for deferred action and may file an Application 
for Employment Authorization if they have not already filed one. The 
notice will also inform the applicant that any final order of removal, 
deportation, or exclusion is automatically stayed as set forth in 
paragraph (g) of this section. An

[[Page 34935]]

application will be treated as a bona fide application as of the date 
of the notice.
    (d) Not considered bona fide. If an application is incomplete or 
presents national security concerns, it will not be considered bona 
fide. There are no motion or appeal rights for a bona fide 
determination upon initial review under this section.
    (1) For applications found not to be bona fide upon initial review, 
USCIS will proceed to full T nonimmigrant status eligibility review as 
described in paragraphs (a)(3) and (b)(3) of this section, generally in 
order of application receipt date.
    (2) If an application is found through this review not to establish 
eligibility for T nonimmigrant status, the application will be denied 
in accordance with Sec.  214.204(q).
    (e) Exercise of discretion. (1) Once USCIS deems an Application for 
T Nonimmigrant Status or Application for Derivative T Nonimmigrant 
Status bona fide, USCIS may consider the applicant for deferred action.
    (2) If, after review of the available information including 
background checks, USCIS determines that deferred action is warranted 
in a particular case as an exercise of enforcement discretion, USCIS 
will then proceed to adjudication of the Application for Employment 
Authorization, if one has been filed.
    (3) There are no motion or appeal rights for the exercise of 
enforcement discretion under this section.
    (f) Bona fide determinations for applicants in removal proceedings. 
This section applies to applicants whose Applications for T 
Nonimmigrant Status or Applications for Derivative T Nonimmigrant 
Status have been deemed bona fide and who are 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). In such cases, ICE may exercise prosecutorial 
discretion, as appropriate, while USCIS adjudicates an Application for 
Derivative T Nonimmigrant Status.
    (g) Stay of final order of removal, deportation, or exclusion. (1) 
If USCIS determines that an application is bona fide it automatically 
stays the execution of any final order of removal, deportation, or 
exclusion.
    (2) This administrative stay will remain in effect until any 
adverse decision becomes final.
    (3) 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 or Application for Derivative T Nonimmigrant 
Status.


Sec.  214.206  Victim of a severe form of trafficking in persons.

    (a) Evidence. The applicant must submit evidence that demonstrates:
    (1) That they are or have 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); 
or
    (2) If an applicant has not performed labor or services, or a 
commercial sex act, they must establish that they were 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 to sex trafficking.
    (3) The applicant may satisfy the requirements under paragraph 
(a)(1) or (2) of this section by submitting:
    (i) The applicant's personal statement, which should describe the 
circumstances of the victimization suffered. For more information 
regarding the personal statement, see Sec.  214.204(c).
    (ii) Any other credible evidence, including but not limited to:
    (A) Trial transcripts;
    (B) Court documents;
    (C) Police reports or other documentation from an LEA;
    (D) News articles;
    (E) Copies of reimbursement forms for travel to and from court;
    (F) Affidavits from case managers, therapists, medical 
professionals, witnesses, or other victims in the same trafficking 
scheme;
    (G) Correspondence or other documentation from the trafficker;
    (H) Documents used in furtherance of the trafficking scheme such as 
recruitment materials, advertisements, pay stubs, logbooks, or 
contracts;
    (I) Photographs or images;
    (J) An LEA declaration as described in Sec.  214.204(c); or
    (K) Documentation of a grant of Continued Presence under 28 CFR 
1100.35.
    (b) [Reserved]


Sec.  214.207  Physical presence.

    (a) Requirement. To be eligible for T-1 nonimmigrant status, an 
applicant must be physically present in the United States, American 
Samoa, the Commonwealth of the Northern Mariana Islands, or at a port-
of-entry thereto on account of such trafficking. USCIS considers the 
applicant's presence in the United States at the time of application. 
An applicant must demonstrate that they are physically present under 
one of the following grounds:
    (1) Are currently being subjected to a severe form of trafficking 
in persons;
    (2) Were liberated from a severe form of trafficking in persons by 
an LEA, at any time prior to filing the Application for T Nonimmigrant 
Status;
    (3) Escaped a severe form of trafficking in persons before an LEA 
was involved, at any time prior to filing the Application for T 
Nonimmigrant Status;
    (4) Were subject to a severe form of trafficking in persons at some 
point in the past and their current presence in the United States is 
directly related to the original trafficking in persons, regardless of 
the length of time that has passed between the trafficking and filing 
of the Application for T Nonimmigrant Status; or
    (5) Have been allowed entry into the United States for 
participation in the detection, investigation, prosecution, or judicial 
processes associated with an act or perpetrator of trafficking.
    (i) An applicant will be deemed physically present under this 
provision regardless of where such trafficking occurred.
    (ii) To demonstrate that the applicant's physical presence is for 
participation in an investigative or judicial process, the applicant 
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.
    (b) Departure from the United States. An applicant 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:
    (1) The applicant's reentry into the United States was the result 
of the continued victimization of the applicant;
    (2) The applicant is a victim of a new incident of a severe form of 
trafficking in persons;
    (3) The applicant has been allowed reentry into the United States 
for participation in the detection, investigation, prosecution, or 
judicial process associated with an act or a perpetrator of 
trafficking. An applicant will be deemed physically present

[[Page 34936]]

under this provision regardless of where such trafficking occurred. To 
demonstrate that the applicant's physical presence is for participation 
in an investigative or judicial process, the applicant 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) The applicant's presence in the United States is on account of 
their past or current participation in investigative or judicial 
processes associated with an act or perpetrator of trafficking, 
regardless of where such trafficking occurred. The applicant may 
satisfy physical presence under this provision regardless of the length 
of time that has passed between their participation in an investigative 
or judicial process associated with an act or perpetrator of 
trafficking and the filing of the Application for T Nonimmigrant 
Status; or
    (5) The applicant returned to the United States and received 
treatment or services related to their victimization that cannot be 
provided in their home country or last place of residence outside the 
United States.
    (c) Evidence. The applicant must submit evidence that demonstrates 
that their physical presence in the United States, American Samoa, the 
Commonwealth of the Northern Mariana Islands, or at a port-of-entry 
thereto, is on account of trafficking in persons. USCIS will consider 
any credible evidence presented to determine the physical presence 
requirement, including but not limited to:
    (1) A detailed personal statement describing the applicant's 
current presence in the United States on account of the trafficking, 
including:
    (i) The circumstances describing the victimization, including when 
the events took place, the length and severity of the trafficking, how 
and when the applicant escaped, was rescued, or otherwise became 
separated from the traffickers, when the trafficking ended, and when 
and how the applicant learned that they were a victim of human 
trafficking;
    (ii) An explanation of any physical health effects or psychological 
trauma the applicant has suffered as a result of the trafficking and a 
description of how this trauma impacts the applicant's life at the time 
of filing;
    (iii) The financial impact of the victimization;
    (iv) The applicant's ability to access mental health services, 
social services, and legal services;
    (v) Any relevant description of the applicant's cooperation with 
law enforcement at the time of filing;
    (vi) A description of how the victimization relates to the 
applicant's current presence in the U.S., if relevant.
    (2) Affidavits, evaluations, diagnoses, or other records from the 
applicant's service providers (including therapists, psychologists, 
psychiatrists, and social workers) documenting the therapeutic, 
psychological, or medical services the applicant has sought or is 
currently accessing as a result of victimization and that describe how 
the applicant's life is being impacted by the trauma at the time of 
filing, and describing any mental health conditions resulting from the 
trafficking;
    (3) Documentation of any stabilizing services and benefits, 
including financial, language, housing, or legal resources, the 
applicant is accessing or has accessed as a result of being trafficked. 
For those services and benefits not currently being accessed, the 
record should demonstrate how those past services and benefits related 
to trauma the applicant is experiencing at the time of filing;
    (4) An LEA declaration as described in Sec.  214.204(c) or other 
statements from LEAs documenting the cooperation between the applicant 
and the LEA or law enforcement involvement in liberating the applicant;
    (5) Documentation of a grant of Continued Presence under 28 CFR 
1100.35;
    (6) 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;
    (7) Copies of news reports, law enforcement records, or court 
records; or
    (8) Any other credible evidence to establish the applicant's 
current presence in the United States is on account of the trafficking 
victimization.


Sec.  214.208  Compliance with any reasonable request for assistance in 
the detection, investigation, or prosecution of an act of trafficking.

    (a) Requirement. To be eligible for T-1 nonimmigrant status, an 
applicant must have complied with any reasonable request for assistance 
from an LEA in the detection, 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 exception or exemption described in 
paragraph (e) of this section.
    (b) Applicability. An applicant must, at a minimum, contact an LEA 
with proper jurisdiction to report the acts of a severe form of 
trafficking in persons. Credible evidence documenting a single contact 
with an LEA may suffice. Reporting may be telephonic, electronic, or 
through other means. 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 they meet an exemption 
or exception as described in paragraph (e) of this section.
    (c) Reasonable 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:
    (1) General law enforcement and prosecutorial practices;
    (2) The nature of the victimization;
    (3) The specific circumstances of the victim;
    (4) The victim's capacity, competency, or lack thereof;
    (5) Trauma suffered (both mental and physical) or whether the 
request would cause further trauma;
    (6) Access to support services;
    (7) The safety of the victim or the victim's family;
    (8) Compliance with previous requests and the extent of such 
compliance;
    (9) Whether the request would yield essential information;
    (10) Whether the information could be obtained without the victim's 
compliance;
    (11) Whether a qualified interpreter or attorney was present to 
ensure the victim understood the request;
    (12) Cultural, religious, or moral objections to the request;
    (13) The time the victim had to comply with the request;
    (14) The age, health, and maturity of the victim; and
    (15) Any other relevant circumstances surrounding the request.
    (d) Evidence. An applicant must submit evidence that demonstrates 
that they have complied with any reasonable request for assistance in a 
Federal, State, Tribal, or local detection, 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 they should be exempt under paragraph (e) of this 
section. If USCIS has any question

[[Page 34937]]

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:
    (1) An LEA declaration as described in Sec.  214.204(c);
    (2) Documentation of a grant of Continued Presence under 28 CFR 
1100.35; or
    (3) Any other evidence, including affidavits of witnesses. In the 
victim's statement prescribed by Sec.  214.204(c), 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.
    (e) Exception or exemption. An applicant who has not had contact 
with an LEA or who has not complied with any reasonable request may be 
excepted or exempt from the requirement to comply with any reasonable 
request for assistance in an investigation or prosecution if either of 
the following circumstances apply:
    (1) Trauma. The applicant is unable to cooperate with a reasonable 
request for assistance from an LEA in the detection, investigation, or 
prosecution of acts of trafficking in persons due to physical or 
psychological trauma. An applicant must submit credible evidence of the 
trauma experienced. The applicant may satisfy this exception by 
submitting:
    (i) A personal statement describing the trauma and explaining the 
circumstances surrounding the trauma the applicant experienced, 
including their age, background, maturity, health, disability, and any 
history of abuse or exploitation;
    (ii) A signed statement from a qualified professional, such as a 
medical professional, mental health professional, social worker, or 
victim advocate, who attests to the victim's mental state or medical 
condition;
    (iii) Medical or psychological records documenting the trauma or 
its impact;
    (iv) Witness statements;
    (v) Photographs;
    (vi) Police reports;
    (vii) Court records and court orders;
    (viii) Disability determinations;
    (ix) Government agency findings; or
    (x) Any other credible evidence.
    (2) Age. The applicant was under 18 years of age at the time of 
victimization. An applicant who was under 18 years of age at the time 
at least one of the acts of trafficking occurred is exempt from the 
requirement to comply with any reasonable request for assistance in the 
detection, investigation, or prosecution, but they must submit evidence 
of their age at the time of the victimization. Where available, an 
applicant should include an official copy of their birth certificate, a 
passport, or a certified medical opinion. USCIS will also consider any 
other credible evidence submitted regarding the age of the applicant.
    (f) Exception or exemption established. When an applicant has 
established that the exception or exemption applies, they are not 
required to have had any contact with law enforcement or comply with 
future requests for assistance, including reporting the trafficking. 
USCIS reserves the authority and discretion to contact the LEA involved 
in the case, if appropriate.


Sec.  214.209  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.
    (a) Standard. A finding of extreme hardship involving unusual and 
severe harm may be based on the following factors.
    (b) 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:
    (1) The age, maturity, and personal circumstances of the applicant;
    (2) Any physical or psychological issues the applicant has that 
necessitate medical or psychological care not reasonably available in 
the foreign country to which the applicant would be returned;
    (3) The nature and extent of the physical and psychological 
consequences of having been a victim of a severe form of trafficking in 
persons;
    (4) 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;
    (5) 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;
    (6) The likelihood of re-victimization and the need, ability, and 
willingness of foreign authorities to protect the applicant;
    (7) The likelihood that the trafficker or others acting on behalf 
of the trafficker in the foreign country would cause the applicant 
harm;
    (8) The likelihood that the applicant's individual safety would be 
threatened by the existence of civil unrest or armed conflict; or
    (9) Current or likelihood of future economic harm.
    (c) Evidence. (1) 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.
    (2) Hardship to persons other than the applicant may be considered 
in determining whether an applicant will suffer the requisite hardship 
only if the related evidence demonstrates specifically that the 
applicant will suffer extreme hardship upon removal as a result of 
hardship to persons other than the applicant.
    (3) 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.
    (4) 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.


Sec.  214.210  Annual numerical limit.

    (a) 5,000 per fiscal year. DHS may not grant T-1 nonimmigrant 
status to more than 5,000 principal applicants in any fiscal year.
    (b) Waiting list. If the numerical limit prevents further grants of 
T-1 nonimmigrant status, USCIS will place applicants who receive a bona 
fide determination pursuant to Sec.  214.205 on a waiting list. USCIS:
    (1) Will assign priority on the waiting list based on the date the 
application was properly filed, with the oldest applications receiving 
the highest priority for processing;

[[Page 34938]]

    (2) Will in the next fiscal year, issue a number to each 
application on the waiting list, in the order of the highest priority; 
and
    (3) After T-1 nonimmigrant status has been issued to eligible 
applicants on the waiting list, USCIS will issue any remaining T-1 
nonimmigrant numbers for that fiscal year to new eligible applicants in 
the order the applications were filed.
    (c) Unlawful presence. While an applicant for T nonimmigrant status 
in the United States is on the waiting list, the applicant will not 
accrue unlawful presence under section 212(a)(9)(B) of the Act.
    (d) Removal from the waiting list. An applicant may be removed from 
the waiting list 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 T nonimmigrant status, the applicant may be removed from 
the waiting list. USCIS will provide notice to the applicant of that 
decision.


Sec.  214.211  Application for eligible family members.

    (a) Eligibility. Subject to section 214(o) of the Act, an applicant 
who has applied for or has been granted T-1 nonimmigrant status 
(principal applicant) 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 applicant.
    (1) Principal applicant 21 years of age or older. For a principal 
applicant who is 21 years of age or over, eligible family member means 
a T-2 (spouse) or T-3 (child).
    (2) Principal applicant under 21 years of age. For a principal 
applicant 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).
    (3) Family member facing danger of retaliation. Regardless of the 
age of the principal applicant, if the eligible family member faces a 
present danger of retaliation as a result of the principal applicant's 
escape from the severe form of trafficking or cooperation with law 
enforcement, in consultation with the law enforcement agency 
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 applicant). 
In cases where the LEA has not investigated the acts of trafficking 
after the applicant has reported the crime, USCIS will evaluate any 
credible evidence demonstrating derivatives' present danger of 
retaliation.
    (4) Admission requirements. The principal applicant must 
demonstrate that the applicant for whom derivative T nonimmigrant 
status is being sought is an eligible family member of the T-1 
principal applicant, as defined in Sec.  214.201, and is otherwise 
eligible for that status.
    (b) Application. (1) Application submission. A T-1 principal 
applicant may submit an Application for Derivative T Nonimmigrant 
Status in accordance with the form instructions.
    (i) The Application for Derivative T Nonimmigrant Status for an 
eligible family member may be filed with the T-1 application, or 
separately.
    (ii) T nonimmigrant status for eligible family members is dependent 
on the principal applicant having been granted T-1 nonimmigrant status 
and the principal applicant maintaining T-1 nonimmigrant status.
    (iii) If a T-1 nonimmigrant cannot maintain status due to their 
death, the provisions of section 204(l) of the Act may apply.
    (2) Eligible family members in pending immigration proceedings. (i) 
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 applicant or T-1 nonimmigrant must file an Application 
for Derivative T Nonimmigrant Status directly with USCIS.
    (ii) At the request of the eligible family member, ICE may exercise 
prosecutorial discretion, as appropriate, while USCIS adjudicates an 
Application for Derivative T Nonimmigrant Status.
    (3) Eligible family members with final orders of removal, 
deportation, or exclusion. (i) If an eligible family member is the 
subject of a final order of removal, deportation, or exclusion, the 
principal applicant must file an Application for Derivative T 
Nonimmigrant Status directly with USCIS.
    (ii) 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 applicant may file a request for an 
administrative stay of removal pursuant to 8 CFR 241.6(a).
    (iii) 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.
    (c) Required supporting evidence. In addition to the form, an 
Application for Derivative T Nonimmigrant Status must include the 
following:
    (1) Biometrics.
    (2) Evidence demonstrating the relationship of an eligible family 
member, as provided in Sec.  214.211(d).
    (3) In the case of an applicant seeking derivative T nonimmigrant 
status based on danger of retaliation, evidence demonstrating this 
danger as provided in Sec.  214.211.
    (4) 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 Sec.  212.16 of this subchapter and submitted with the 
completed application package.
    (d) Relationship. Except as described in paragraph (e) of this 
section, the family relationship must exist at the time:
    (1) The Application for T Nonimmigrant Status is filed;
    (2) The Application for T Nonimmigrant Status is adjudicated;
    (3) The Application for Derivative T Nonimmigrant Status is filed;
    (4) The Application for Derivative T Nonimmigrant Status is 
adjudicated; and
    (5) The eligible family member is admitted to the United States if 
residing abroad.
    (e) Relationship and age-out protections--(1) Protection for new 
child of a principal applicant. If the T-1 principal applicant 
establishes that they have become a parent of 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 applicant.
    (2) Age-out protection for eligible family members of a principal 
applicant under 21 years of age. (i) If the T-1 principal applicant was 
under 21 years of age when they applied for T-1 nonimmigrant status, 
USCIS will continue to consider a parent or unmarried sibling as an 
eligible family member.
    (ii) A parent or unmarried sibling will remain eligible even if the 
principal applicant turns 21 years of age before adjudication of the 
application for T-1 nonimmigrant status.
    (iii) An unmarried sibling will remain eligible even if the 
unmarried sibling is over 18 years of age at the time of

[[Page 34939]]

adjudication of the T-1 application, so long as the unmarried sibling 
was under 18 years of age at the time the T-1 application was filed.
    (iv) The age of an unmarried sibling when USCIS adjudicates the T-1 
application, when the principal applicant or T-1 nonimmigrant files the 
Application for Derivative T Nonimmigrant Status, when USCIS 
adjudicates the derivative application, or when the unmarried sibling 
is admitted to the United States does not affect eligibility.
    (3) Age-out protection for child of a principal applicant. (i) 
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 the 
Application for T Nonimmigrant Status, but reached 21 years of age 
while the principal's application was still pending.
    (ii) The child will remain eligible even if the child is over 21 
years of age at the time of adjudication of the T-1 application.
    (iii) As long as the child is under age 21 when the Application for 
T Nonimmigrant Status is filed and reaches age 21 while such 
application is pending, the age of the child when the principal 
applicant or T-1 nonimmigrant files the Application for Derivative T 
Nonimmigrant Status, when USCIS adjudicates the Application for 
Derivative T Nonimmigrant Status, or when the child is admitted to the 
United States does not affect eligibility.
    (4) Marriage of an eligible family member. (i) An eligible family 
member seeking T-3 or T-5 status must be unmarried when the principal 
applicant files an Application for T Nonimmigrant Status, when USCIS 
adjudicates the Application for T Nonimmigrant Status, when the 
principal applicant or T-1 nonimmigrant files the Application for 
Derivative T Nonimmigrant Status, when USCIS adjudicates the Derivative 
T Nonimmigrant Status, and if relevant, when the family member is 
admitted to the United States.
    (ii) Principal applicants who marry while their Application for T 
Nonimmigrant Status is pending may file an Application for Derivative T 
Nonimmigrant Status on behalf of their spouse, even if the relationship 
did not exist at the time they filed their Application for T 
Nonimmigrant Status.
    (iii) Similarly, the principal applicant may apply for a stepparent 
or stepchild if the qualifying relationship was created after they 
filed their Application for T Nonimmigrant Status but before it was 
approved.
    (iv) USCIS evaluates whether the marriage creating the qualifying 
spousal relationship or stepchild and stepparent relationship exists at 
the time of adjudication of the principal's application and through 
completion of the adjudication of the derivative's application.
    (f) Evidence demonstrating a present danger of retaliation. A 
principal applicant or T-1 nonimmigrant seeking derivative T 
nonimmigrant status for an eligible family member on the basis of 
facing a present danger of retaliation as a result of the principal 
applicant's or T-1 nonimmigrant'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:
    (1) Documentation of a previous grant of advance parole to an 
eligible family member;
    (2) A signed statement from a law enforcement agency describing the 
danger of retaliation;
    (3) A personal statement from the principal applicant or derivative 
applicant describing the danger the family member faces and how the 
danger is linked to the victim's escape or cooperation with law 
enforcement; and/or
    (4) 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. This 
evidence may be from the United States or any country in which the 
eligible family member is facing danger of retaliation.
    (g) Biometric submission; evidentiary standards. The provisions for 
biometric submission and evidentiary standards described in Sec.  
214.204(b) and (d) apply to an eligible family member's Application for 
Derivative T Nonimmigrant Status.
    (h) Review and decision. USCIS will review the application and 
issue a decision in accordance with paragraph (d) of this section.
    (i) Derivative approvals. A noncitizen whose Application for 
Derivative T Nonimmigrant Status is approved is not subject to the 
annual limit described in Sec.  214.210. USCIS will not approve an 
Application for Derivative T Nonimmigrant Status unless and until it 
has approved T-1 nonimmigrant status for the principal applicant.
    (1) 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 T nonimmigrant status for the eligible family 
member. USCIS will notify the T-1 nonimmigrant of such approval and 
provide evidence of T nonimmigrant status to the derivative.
    (2) 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 
nonimmigrant of such approval and provide the necessary documentation 
to the Department of State for consideration of visa issuance.
    (3) Employment authorization. (i) A noncitizen granted derivative T 
nonimmigrant status may apply for employment authorization by filing an 
Application for Employment Authorization in accordance with form 
instructions.
    (ii) For derivatives in the United States, the Application for 
Employment Authorization may be filed concurrently with the Application 
for Derivative T Nonimmigrant Status or at any later time.
    (iii) For derivatives outside the United States, an Application for 
Employment Authorization based on their T nonimmigrant status may only 
be filed after admission to the United States in T nonimmigrant status.
    (iv) If the Application for Employment Authorization is approved, 
the derivative T nonimmigrant will be granted employment authorization 
pursuant to 8 CFR 274a.12(c)(25) for the period remaining in derivative 
T nonimmigrant status.
    (4) Travel abroad. In order to return to the United States after 
travel abroad and continue to hold derivative T nonimmigrant status, a 
noncitizen granted derivative T nonimmigrant status must either be 
granted advance parole pursuant to section 212(d)(5) of the Act and 8 
CFR 223 or obtain a T nonimmigrant visa (unless visa exempt under 8 CFR 
212.1) and be admitted as a T nonimmigrant at a designated port of 
entry.


Sec.  214.212  Extension of T nonimmigrant status.

    (a) 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:
    (1) An LEA detecting, investigating, or prosecuting activity 
related to acts of trafficking certifies that the presence of the 
applicant in the United States is necessary to assist in the detection, 
investigation, or prosecution of such activity; or

[[Page 34940]]

    (2) USCIS determines that an extension is warranted due to 
exceptional circumstances.
    (b) 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 in 
accordance with form instructions. A derivative T nonimmigrant may file 
for an extension of status independently if the T-1 nonimmigrant 
remains in valid T nonimmigrant status, or the T-1 nonimmigrant may 
file for an extension of T-1 status and request that this extension be 
applied to the derivative family members in accordance with the form 
instructions.
    (c) Timely filing. An applicant should file the application to 
extend nonimmigrant status before the expiration of T nonimmigrant 
status. If T 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.
    (d) Evidence. In addition to the application, a T 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 and that a favorable exercise of 
discretion is warranted.
    (e) Evidence of law enforcement need. An applicant may demonstrate 
law enforcement need by submitting evidence that comes directly from an 
LEA, including:
    (1) A new LEA declaration;
    (2) Evidence from a law enforcement official, prosecutor, judge, or 
other authority who can detect, investigate, or prosecute acts of 
trafficking, such as a letter on the agency's letterhead, email, or 
fax; or
    (3) Any other credible evidence.
    (f) Exceptional circumstances. (1) USCIS may, in its discretion, 
extend status beyond the 4-year period if it determines the extension 
of the period of such nonimmigrant status is warranted due to 
exceptional circumstances as described in section 214(o)(7)(iii) of the 
Act. (2) USCIS may approve an extension of status for a principal 
applicant, based on exceptional circumstances, when an approved 
eligible family member is awaiting initial issuance of a T visa by an 
embassy or consulate and the principal applicant's T-1 nonimmigrant 
status is soon to expire.
    (g) Evidence of exceptional circumstances. An applicant may 
demonstrate exceptional circumstances by submitting:
    (1) The applicant's affirmative statement; or
    (2) Any other credible evidence, including but not limited to:
    (i) Medical records;
    (ii) Police or court records;
    (iii) News articles;
    (iv) Correspondence with an embassy or consulate; and
    (v) Affidavits from individuals with direct knowledge of or 
familiarity with the applicant's circumstances.
    (h) Mandatory extensions of status for adjustment of status 
applicants. USCIS will automatically extend T nonimmigrant status when 
a T nonimmigrant properly files an application for adjustment of status 
during the period of T nonimmigrant status, in accordance with 8 CFR 
245.23. No separate application for extension of T nonimmigrant status, 
or supporting evidence, is required.


Sec.  214.213  Revocation of approved T nonimmigrant status.

    (a) Automatic revocation of derivative status. An approved 
Application for Derivative T Nonimmigrant Status will be revoked 
automatically if the family member with an approved derivative 
application notifies USCIS that they will not apply for admission to 
the United States. An automatic revocation cannot be appealed.
    (b) 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 if:
    (1) The approval of the application violated the requirements of 
section 101(a)(15)(T) of the Act or this subpart or involved error in 
preparation, procedure, or adjudication that led to the approval;
    (2) In the case of a T-2 spouse, the applicant's divorce from the 
T-1 principal applicant has become final;
    (3) In the case of a T-1 principal applicant, an LEA with 
jurisdiction to detect, investigate, or prosecute the acts of severe 
forms of trafficking in persons notifies USCIS that the applicant has 
refused to comply with a reasonable request to assist with the 
detection, investigation, or prosecution of the trafficking in persons 
and provides USCIS with a detailed explanation in writing; or
    (4) The LEA that signed the LEA declaration withdraws it or 
disavows its contents and notifies USCIS and provides a detailed 
explanation of its reasoning in writing.
    (c) Procedures. (1) USCIS may revoke an approved application for T 
nonimmigrant status following a notice of intent to revoke.
    (i) The notice of intent to revoke must be in writing and contain a 
statement of the grounds for the revocation and the time period allowed 
for the T nonimmigrant's rebuttal.
    (ii) The T nonimmigrant may submit evidence in rebuttal within 30 
days of the notice.
    (iii) USCIS will consider all relevant evidence in determining 
whether to revoke the approved application for T nonimmigrant status.
    (2) If USCIS revokes approval of the previously granted T 
nonimmigrant status application, USCIS:
    (i) Will provide written notice to the applicant; and
    (ii) May notify the LEA who signed the LEA declaration, any 
consular officer having jurisdiction over the applicant, or the Office 
of Refugee Resettlement of the Department of Health and Human Services.
    (3) If an applicant appeals the revocation, the decision will not 
become final until the administrative appeal is decided in accordance 
with 8 CFR 103.3.
    (d) Effect of revocation. Revocation of T-1 nonimmigrant status 
will terminate the principal's status as a T nonimmigrant and result in 
automatic termination of any derivative T nonimmigrant status. If a 
derivative application is pending at the time of revocation of T-1 
nonimmigrant status, such pending applications will be denied. 
Revocation of a T-1 nonimmigrant status or derivative T nonimmigrant 
status also revokes any waiver of inadmissibility granted in 
conjunction with such application. The revocation of T-1 nonimmigrant 
status will have no effect on the annual numerical limit described in 
Sec.  214.210.


Sec.  214.214  Removal proceedings.

    (a) 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.
    (b) ICE will maintain a policy regarding the exercise of discretion 
toward all applicants for T nonimmigrant status and T nonimmigrants. 
This policy will address, but need not be limited to,

[[Page 34941]]

ICE's discretionary decision-making in proceedings before the Executive 
Office for Immigration Review and considerations related to ICE's 
immigration enforcement actions involving T visa applicants and T 
nonimmigrants.


Sec.  214.215  USCIS employee referral.

    (a) Any USCIS employee who, while carrying out their official 
duties, comes into contact with a noncitizen believed to be a victim of 
a severe form of trafficking in persons and is not already working with 
an LEA may consult, as necessary, with the ICE officials responsible 
for victim protection, trafficking investigations and prevention, and 
deterrence.
    (b) The ICE office may, in turn, refer the victim to another LEA 
with responsibility for detecting, investigating, or prosecuting acts 
of trafficking.
    (c) If the noncitizen has a credible claim to victimization, USCIS 
may advise the individual that they can submit an Application for T 
Nonimmigrant Status and seek any other benefit or protection for which 
they may be eligible, provided doing so would not compromise the 
noncitizen's safety.


Sec.  214.216  Restrictions on use and disclosure of information 
relating to applicants for T nonimmigrant classification.

    (a) 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).
    (b) 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.
    (c) 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.
    (d) DHS officials are prohibited from making adverse determinations 
of admissibility or deportability based on information obtained solely 
from the trafficker, unless the applicant 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
8. The authority citation for part 245 continues to read as follows:

    Authority:  8 U.S.C. 1101, 1103, 1182, 1252, 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
9. Revise Sec.  245.23 to read as follows:


Sec.  245.23  Adjustment of noncitizens in T nonimmigrant 
classification.

    (a) Eligibility of principal T-1 applicants. Except as described in 
paragraph (c) of this section, a noncitizen may be granted adjustment 
of status to that of a noncitizen lawfully admitted for permanent 
residence, provided the noncitizen:
    (1) Applies for such adjustment.
    (2) Was lawfully admitted to the United States as a T-1 
nonimmigrant, as defined in 8 CFR 214.201.
    (3) Continues to hold T-1 nonimmigrant status at the time of 
application.
    (4) Has been physically present in the United States for a 
continuous period of at least 3 years since the 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 noncitizen was granted T nonimmigrant status, such 
noncitizen'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.
    (5) Is admissible to the United States under the Act, or otherwise 
has been granted a waiver by USCIS of any applicable ground of 
inadmissibility, at the time of examination for adjustment.
    (6) Has been a person of good moral character since first being 
lawfully admitted as a T-1 nonimmigrant and until USCIS completes the 
adjudication of the application for adjustment of status.
    (7)(i) Has, since first being lawfully admitted as a T-1 
nonimmigrant, and until the conclusion of adjudication of the 
application, complied with any reasonable request for assistance in the 
detection, investigation or prosecution of acts of trafficking, as 
defined in Sec.  8 CFR 214.201; or
    (ii) Would suffer extreme hardship involving unusual and severe 
harm upon removal from the United States, as provided in 8 CFR 214.209; 
or
    (iii) Was younger than 18 years of age at the time of the 
victimization that qualified the T nonimmigrant for relief under 
section 101(a)(15)(T) of the Act, 8 U.S.C. 1101(a)(15)(T); or
    (iv) Established an inability to cooperate with a reasonable 
request for assistance at the time their Application for T Nonimmigrant 
Status was approved, as defined in 8 CFR 214.202(c)(1) and (2).
    (b) Eligibility of derivative family members. A derivative family 
member of a T-1 nonimmigrant status holder may be granted adjustment of 
status to that of a noncitizen lawfully admitted for permanent 
residence, provided:
    (1) The T-1 nonimmigrant has applied for adjustment of status under 
this section and meets the eligibility requirements described under 
paragraph (a) of this section;
    (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;
    (3) The derivative family member has applied for such adjustment; 
and
    (4) The derivative family member is admissible to the United States 
under the Act, or otherwise has been granted a waiver by USCIS of any 
applicable ground of inadmissibility, at the time of examination for 
adjustment.
    (5) The derivative family member does not automatically lose T 
nonimmigrant status when the T-1 nonimmigrant adjusts status.
    (c) Exceptions. A noncitizen is not eligible for adjustment of 
status under paragraph (a) or (b) of this section if:
    (1) Their T nonimmigrant status has been revoked pursuant to 8 CFR 
214.213;
    (2) They are described in section 212(a)(3), 212(a)(10)(C), or 
212(a)(10)(E) of the Act; or
    (3) They are inadmissible under any other provisions of section 
212(a) of the Act and have not obtained a waiver of

[[Page 34942]]

inadmissibility in accordance with 8 CFR 212.18 or 214.210.
    (4) Where the applicant establishes that the victimization was a 
central reason for their unlawful presence in the United States, 
section 212(a)(9)(B)(iii) of the Act is not applicable, and the 
applicant need not obtain a waiver of that ground of inadmissibility. 
The applicant, however, must submit with their application for 
adjustment of status evidence sufficient to demonstrate that the 
victimization suffered was a central reason for the unlawful presence 
in the United States. To qualify for this exception, the victimization 
need not be the sole reason for the unlawful presence but the nexus 
between the victimization and the unlawful presence must be more than 
tangential, incidental, or superficial.
    (d) Jurisdiction. (1) USCIS shall determine whether a T-1 applicant 
for adjustment of status under this section was lawfully admitted as a 
T-1 nonimmigrant and continues to hold such status, has been physically 
present in the United States during the requisite period, is admissible 
to the United States or has otherwise been granted a waiver of any 
applicable ground of inadmissibility, and has been a person of good 
moral character during the requisite period.
    (2) USCIS shall determine whether the applicant received a 
reasonable request for assistance in the investigation or prosecution 
of acts of trafficking as defined in 8 CFR 214.201 and 214.208(c), and, 
if so, whether the applicant complied in such request.
    (3) If USCIS determines that the applicant failed to comply with 
any reasonable request for assistance, USCIS shall deny the application 
for adjustment of status unless USCIS finds that the applicant would 
suffer extreme hardship involving unusual and severe harm upon removal 
from the United States.
    (e) Application--(1) Filing requirements. Each T-1 principal 
applicant and each derivative family member who is applying for 
adjustment of status must file an Application to Register Permanent 
Residence or Adjust Status; and
    (i) Accompanying documents, in accordance with the form 
instructions;
    (ii) A photocopy of the applicant's Notice of Action, granting T 
nonimmigrant status;
    (iii) A photocopy of all pages of their most recent passport or an 
explanation of why they do not have a passport;
    (iv) A copy of the applicant's Arrival-Departure Record; and
    (v) Evidence that the applicant was lawfully admitted in T 
nonimmigrant status and continues to hold such status at the time of 
application. For T nonimmigrants who traveled outside the United States 
and returned to the United States after presenting an Advance Parole 
Document issued while the adjustment of status application was pending, 
the date that the applicant was first admitted in lawful T status will 
be the date of admission for purposes of this section, regardless of 
how the applicant's Arrival-Departure Record is annotated.
    (2) T-1 principal applicants. In addition to the items in paragraph 
(e)(1) of this section, T-1 principal applicants must submit:
    (i) Evidence, including an affidavit from the applicant and a 
photocopy of all pages of all of the applicant's passports valid during 
the required period (or equivalent travel document or a valid 
explanation of why the applicant does not have a passport), that they 
have been continuously physically present in the United States for the 
requisite period as described in paragraph (a)(2) of this section. 
Applicants should submit evidence described in Sec.  245.22. A signed 
statement from the applicant attesting to the applicant's continuous 
physical presence alone will not be sufficient to establish this 
eligibility requirement. If additional documentation is not available, 
the applicant must explain why in an affidavit and provide additional 
affidavits from others with first-hand knowledge who can attest to the 
applicant's continuous physical presence by specific facts.
    (A) If the applicant has departed from and returned to the United 
States while in T-1 nonimmigrant status, the applicant must submit 
supporting evidence showing the dates of each departure from the United 
States and the date, manner, and place of each return to the United 
States.
    (B) Applicants applying for adjustment of status under this section 
who have less than 3 years of continuous physical presence while in T-1 
nonimmigrant status must submit a document signed by the Attorney 
General or their designee, attesting that the investigation or 
prosecution is complete.
    (ii) Evidence of good moral character in accordance with paragraph 
(g) of this section; and
    (A) Evidence that the applicant has complied with any reasonable 
request for assistance in the investigation or prosecution of the 
trafficking as described in paragraph (f)(1) of this section since 
having first been lawfully admitted in T-1 nonimmigrant status and 
until the adjudication of the application; or
    (B) Evidence that the applicant would suffer extreme hardship 
involving unusual and severe harm if removed from the United States as 
described in paragraph (f)(2) of this section.
    (3) Evidence relating to discretion. Each applicant seeking 
adjustment under section 245(l) of the Act bears the burden of showing 
that discretion should be exercised in their favor. Where adverse 
factors are present, an applicant may offset these by submitting 
supporting documentation establishing mitigating equities that the 
applicant wants USCIS to consider. Depending on the nature of adverse 
factors, the applicant may be required to clearly demonstrate that the 
denial of adjustment of status would result in exceptional and 
extremely unusual hardship. Moreover, depending on the gravity of the 
adverse factors, such a showing might still be insufficient. For 
example, only the most compelling positive factors would justify a 
favorable exercise of discretion in cases where the applicant has 
committed or been convicted of a serious violent crime, a crime 
involving sexual abuse committed upon a child, or multiple drug-related 
crimes, or where there are security- or terrorism-related concerns.
    (f) Assistance in the investigation or prosecution or a showing of 
extreme hardship. Each T-1 principal applicant must establish that 
since having been lawfully admitted as a T-1 nonimmigrant and up until 
the adjudication of the application, they complied with any reasonable 
request for assistance in the investigation or prosecution of the acts 
of trafficking, as defined in 8 CFR 214.201, or establish that they 
would suffer extreme hardship involving unusual and severe harm upon 
removal from the United States.
    (1) Each T-1 applicant for adjustment of status under section 
245(l) of the Act must submit evidence demonstrating that the applicant 
has complied with any reasonable requests for assistance in the 
investigation or prosecution of the human trafficking offenses during 
the requisite period; or
    (2) In lieu of showing continued compliance with requests for 
assistance, an applicant may establish that they would suffer extreme 
hardship involving unusual and severe harm upon removal from the United 
States.
    (i) The hardship determination will be evaluated on a case-by-case 
basis, in accordance with the factors described in 8 CFR 214.209.
    (ii) Where the basis for the hardship claim represents a 
continuation of the hardship claimed in the Application for

[[Page 34943]]

T Nonimmigrant Status, the applicant need not re-document the entire 
claim, but rather may submit evidence to establish that the previously 
established hardship is ongoing. However, in reaching its decision 
regarding hardship under this section, USCIS is not bound by its 
previous hardship determination made under 8 CFR 214.209.
    (g) Good moral character. A T-1 nonimmigrant applicant for 
adjustment of status under this section must demonstrate that they have 
been a person of good moral character since first being lawfully 
admitted as a T-1 nonimmigrant and until USCIS completes the 
adjudication of their applications for adjustment of status. Claims of 
good moral character will be evaluated on a case-by-case basis, taking 
into account section 101(f) of the Act and the standards of the 
community. The applicant must submit evidence of good moral character 
as follows:
    (1) An affidavit from the applicant attesting to their good moral 
character, accompanied by a local police clearance or a state-issued 
criminal background check from each locality or state in the United 
States in which the applicant has resided for 6 or more months during 
the requisite period in continued presence or T-1 nonimmigrant status.
    (2) If police clearances, criminal background checks, or similar 
reports are not available for some or all locations, the applicant may 
include an explanation and submit other evidence with their affidavit.
    (3) USCIS will consider other credible evidence of good moral 
character, such as affidavits from responsible persons who can 
knowledgeably attest to the applicant's good moral character.
    (4) An applicant who is under 14 years of age is generally presumed 
to be a person of good moral character and is not required to submit 
evidence of good moral character. However, if there is reason to 
believe that an applicant who is under 14 years of age may lack good 
moral character, USCIS may require evidence of good moral character.
    (h) Filing and decision. An application for adjustment of status 
from a T nonimmigrant under section 245(l) of the Act shall be filed 
with the USCIS office identified in the instructions to the Application 
to Register Permanent Residence or Adjust Status. Upon approval of 
adjustment of status under this section, USCIS will record the 
noncitizen's lawful admission for permanent residence as of the date of 
such approval and will notify the applicant in writing. Derivative 
family members' applications may not be approved before the principal 
applicant's application is approved.
    (i) Denial. If the application for adjustment of status or the 
application for a waiver of inadmissibility is denied, USCIS will 
notify the applicant in writing of the reasons for the denial and of 
the right to appeal the decision to the Administrative Appeals Office 
(AAO) pursuant to the AAO appeal procedures found at 8 CFR 103.3. 
Denial of the T-1 principal applicant's application will result in the 
automatic denial of a derivative family member's application.
    (j) Effect of Departure. (1) If an applicant for adjustment of 
status under this section departs the United States, they shall be 
deemed to have abandoned the application, and it will be denied.
    (2) If, however, the applicant is not under exclusion, deportation, 
or removal proceedings, and they filed an Application for Travel 
Document, in accordance with the instructions on the form, or any other 
appropriate form, and was granted advance parole by USCIS for such 
absences, and was inspected and paroled upon returning to the United 
States, they will not be deemed to have abandoned the application.
    (3) If the adjustment of status application of such an individual 
is subsequently denied, they will be treated as an applicant for 
admission subject to sections 212 and 235 of the Act. If an applicant 
for adjustment of status under this section is under exclusion, 
deportation, or removal proceedings, USCIS will deem the application 
for adjustment of status abandoned as of the moment of the applicant's 
departure from the United States.
    (k) Inapplicability. Sections 245.1 and 245.2 do not apply to 
noncitizens seeking adjustment of status under this section.
    (l) Annual limit of T-1 principal applicant adjustments--(1) 
General. The total number of T-1 principal applicants whose status is 
adjusted to that of lawful permanent residents under this section may 
not exceed the statutory limit in any fiscal year.
    (2) Waiting list. (i) All eligible applicants who, due solely to 
the limit imposed in section 245(l)(4) of the Act and paragraph (l)(1) 
of this section, are not granted adjustment of status will be placed on 
a waiting list. USCIS will send the applicant written notice of such 
placement.
    (ii) Priority on the waiting list will be determined by the date 
the application was properly filed, with the oldest applications 
receiving the highest priority.
    (iii) In the following fiscal year, USCIS will proceed with 
granting adjustment of status to applicants on the waiting list who 
remain admissible and eligible for adjustment of status in order of 
highest priority until the available numbers are exhausted for the 
given fiscal year.
    (iv) After the status of qualifying applicants on the waiting list 
has been adjusted, any remaining numbers for that fiscal year will be 
issued to new qualifying applicants in the order that the applications 
were properly filed.

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

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

    Authority:  8 U.S.C. 1101, 1103, 1324a; 48 U.S.C. 1806; Pub. L. 
101-410, 104 Stat. 890 (28 U.S.C. 2461 note); Pub. L. 114-74, 129 
Stat. 599 (28 U.S.C. 2461 note); 8 CFR part 2.


0
11. Amend Sec.  274a.12 by reserving paragraphs (c)(37) through (39) 
and adding paragraph (c)(40) to read as follows:


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

* * * * *
    (c) * * *
    (40) A noncitizen applicant for T nonimmigrant status, and eligible 
family members, who have pending, bona fide applications, and who merit 
a favorable exercise of discretion.
* * * * *

Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2024-09022 Filed 4-29-24; 8:45 am]
BILLING CODE 9111-97-P