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?
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:
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 taking sexually explicit photographs would also qualify. He or she was transported to the U.S. for the goal of child pornography.
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.
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:
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 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:
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.
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.
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.