Differences Between T and U Visas

Congress created both "T" and "U" visas to encourage the victims of certain serious crimes to cooperate with law enforcement officials who are prosecuting criminal offenders. Only certain types of crimes will qualify the victim for a T or U visa; but both T and U visas include the qualifying crime of human trafficking. So, which type of visa should a victim apply for?

This article outlines the important differences between the two visas. Keep in mind that you will need to provide different types of evidence to show U.S. Citizenship and Immigration Services (USCIS) that you are eligible for either a T or U visa. Trafficking victims might want to evaluate the circumstances surrounding their case to determine whether they can make a stronger case for a U visa or a T visa.

For more information about who is eligible for a U visa, including a list of qualifying crimes other than human trafficking, you can read U Visas for Crime Victims Assisting Law Enforcement: Who Is Eligible?

What Qualifies as Human Trafficking for a T Visa

Human trafficking under U.S. law is defined based on the 2000 UN Protocol to Prevent, Suppress and Punish Trafficking in Persons. The elements of the crime fall into three categories:

• Process: recruitment, transportation, transferring, harboring (for long enough to substantially limit or restrict the victim's movement or agency), or receiving of a person.
• Ways and means: threats, coercion, abduction, fraud, deceit, deception, or abuse of power or the legal process (for example, by threatening to call immigration authorities if the victim runs away).
• Goal: prostitution, pornography, violence and sexual exploitation, forced labor, involuntary servitude, debt bondage, or slavery.

Adult victims of human trafficking must prove that the crime involved at least one element from each of the above three. Child victims of human trafficking need only show an element from the Process and Goal categories.

For example, an adult woman who was promised a job as a nanny and U.S. "working papers" if she came to the United States, and upon arrival had her passport taken away and was forced to take care of children for very little money, would qualify as a victim of human trafficking. She was recruited and received into the U.S. by fraud, deception, and abuse of power, with the goal of forced labor and involuntary servitude.

A child who was brought to the U.S. by a parent to participate in having sexually explicit photographs taken would also qualify. The child was transported to the U.S. for the goal of child pornography.

T Visa Applicants Must Have Been "Trafficked" Into the U.S.

In order to qualify for a T visa, you must be present in the U.S. as a result of human trafficking. This differs from the qualification criteria for applicants for a U visa, who may have visited the United States on vacation (or for another purpose) and then been subjected to human trafficking or another qualifying crime.

This means that in most cases, to be eligible for a T visa, you must have traveled to the United States because you were recruited, forced, abducted, or deceived by the perpetrator of human trafficking and would not have been present in the U.S. if it were not for the actions of that person.

It is not necessary to demonstrate you "knew" that you would be subjected to prostitution or slavery (or any other goal of human trafficking) upon your arrival. For example, if you were persuaded to come to the United States for another reason and later discovered that the real goal was to exploit you for cheap or unpaid labor, you are in the U.S. as a result of human trafficking. Or if you voluntarily entered into a smuggling arrangement that turned into a trafficking one, that could count as well.

U Visa Applicants Must Cooperate With Law Enforcement to a Greater Extent

Just like with the U visa, applicants for T visas must not refuse a reasonable request to cooperate with law enforcement officials who are investigating and prosecuting the human trafficking crime. Certain T visa applicants will not need to cooperate with law enforcement at all. You may be exempt from this cooperation requirement if:

• you are a minor child (under 18 years old) or were during at least one of the trafficking acts, or
• you are unable to cooperate due to physical or psychological trauma.

Additionally, T visa applicants are not required to obtain a "Certification of Helpfulness" from a qualifying agency like U visa applicants (or if under age 18, their "next friend") must. Instead, T visa applicants are strongly encouraged to obtain a declaration from a law enforcement officer as primary evidence that they are a victim of human trafficking crime to submit with their application. While this is technically not required, USCIS is more likely to favorably consider your application if you show that you are cooperating with police, government agencies, and prosecuting officials.

U Visa Applicants Must Show Substantial Abuse, While T Visa Applicants Must Show Extreme Hardship If Denied

U visa applicants must prove that they suffered "substantial physical or mental abuse" as a result of the qualifying crime.

T visa applicants do not need to provide documentation of physical or mental abuse (though it will certainly help you to build a more convincing case). However, T visa applicants will need to show that their removal from the U.S. would cause "extreme hardship involving unusual and extreme harm." This can be difficult to prove. You can do this by providing evidence that you would suffer if you were forced to leave the United States because:

• you have medical needs (due to the trafficking crime or for other reasons) that cannot be met in your home country because of a lack of medical or psychological services
• your country's government will not protect you from further harm or prosecute the trafficking offenders
• you would be stigmatized in your home country as a result of being a trafficking victim (for example, if you were identified as a female victim of sex trafficking, you would be unable to obtain employment or get married or may be vulnerable to further victimization), or
• because of any other factors particular to your case.

Both T and U Visas Are Subject to an Annual Cap

Despite occasional discussion by Congress about increase the number of U visas available to crime victims, the yearly caps remain at 10,000 U visas and 5,000 T visas (principal applicants only; the limitations do not include visas for derivative family members).

Because of these numerical limitations, you might want to see whether the cap for either visa category has been reached before you apply.

Other T and U Visa Similarities

There are some important similarities between the two visas. Both allow principal applicants to apply for derivative visas for certain qualifying family members. In addition, T and U visa holders (and their derivative family members) may apply to adjust their status in the United States to permanent residence based on their time in the U.S. on the visa, and certain other eligibility requirements.

In addition, both T and U visa applicants have less to worry about from the U.S. grounds of "inadmissibility" than other visa applicants do. They can apply for a discretionary waiver of inadmissibility using USCIS Form I-192, Application for Advance Permission to Enter as a Nonimmigrant, which will not require the showing of "extreme hardship" that is required of many other waiver applicants. To learn more about the criminal, health, and other grounds that can render you "inadmissible" to the U.S., read Inadmissibility: When the U.S. Can Keep You Out.

Consult an Experienced Immigration Attorney or Nonprofit Organization to Help You Apply

No matter which visa you decide to apply for, you should consult with an experienced immigration attorney or a nonprofit organization with experience with victims of human trafficking (such as the Polaris Project) to help you prepare a convincing application for USCIS. An attorney can advise you, based on the circumstances of your situation, about whether you are more likely to succeed in your application for a T or a U visa, and help you gather documentation that satisfies the requirements and see your case to a positive decision.