A special visa created 12 years ago to save thousands of victims of human trafficking and curb international human trafficking has been vastly underutilized.
Attorneys for rescued victims seeking residency protection say law enforcement agencies are often unwilling or slow to “certify” victims’ claims of having been brought to the U.S. to work by force, fraud or coercion.
Legal experts and social service providers in high-trafficking regions, including the San Francisco Bay Area, suggest that victims are placed in a dangerous dilemma: Promising to cooperate with an investigation could possibly help their visa cases, but it could also expose them and their families back home to retaliation.
One result is that victims only apply for a fraction of the visas available each year. Last year the government received one-fifth of its quota, and of the applications received nearly 23 percent were rejected.
Lawyers and service providers for trafficking victims said the lack of assistance from law enforcement slowed or derailed what they called deserving applications. In one case, a domestic servant who worked 16-hour days for no pay for years earned a T visa with the help of a crusading lawyer despite the lack of certification by federal law enforcement officials.
Created by the federal Trafficking Victims Protection Act of 2000, the T-1 Nonimmigrant Status visa provides trafficking victims from foreign countries temporary legal status, with an opportunity to apply for permanent residency and access to federal benefits if they cooperate with law enforcement in the investigations of their traffickers. Minors and those unable to participate in investigations because of physical or psychological trauma are excused, according to U.S. Citizenship and Immigration Services, the agency that adjudicates the visa applications.
Data supplied by the agency reveals that only a few hundred T visas have been issued each year since the program began, despite a yearly quota of 5,000 available. According to the agency, in the last fiscal year 557 T visa applications were approved and 223 were rejected.
The original federal trafficking law, authored by Rep. Christopher Smith, R-New Jersey, has been reauthorized three times, and revisions have included lowering the visa qualification standards and increasing services available to trafficking victims.
Scholars specializing in international human trafficking laws say the program is flawed because the help it offers victims is hinged on their willingness to assist in the investigations.
“It would be much better to have a system where your protections were not dependent on you giving evidence against the person who trafficked you, which is the case for children,” said Jacqueline Bhabha, director of research at Harvard University’s François-Xavier Bagnoud Center for Health and Human Rights.
Helping law enforcement
The T visa application encourages applicants to submit “primary evidence” of their cooperation, which consists of a law enforcement certification that they have agreed to support investigations of their traffickers.
Attorneys and social service providers who work with T visa applicants say obtaining the certification is often an impediment in the application process.
Zoraida Peña Canal was trafficked from Peru to be a domestic servant in Contra Costa County five years ago. Sacramento attorney Avantika Rao helped her obtain a T visa, even though she said she was unable to get certification from law enforcement.
Peña Canal entered the U.S. in July 2006 to live with and work for a Walnut Creek family. She was put to work from 6 a.m. to 10 p.m. each day for no pay caring for two children and doing chores, though her employer assured her that she would be paid.
Rao said Peña Canal escaped with the help of three neighbors. She learned about Peña Canal’s case when she was working at La Raza Centro Legal, a San Francisco-based organization that provides legal services to immigrants and low-income people.
Rao said in an email that law enforcement denied the certification though her client was doing everything possible to cooperate in the investigation.
“Ms. Peña Canal and I met with law enforcement agents and the U.S. Attorney’s Office on at least a dozen occasions during which Ms. Peña Canal provided physical evidence as well as testimony with regards to the crime,” Rao said.
After a series of requests to the U.S. Attorney’s Office to supply the certification, she was notified in September 2008 that the office would not provide the document.
“I was absolutely devastated by their decision, especially because they implied that they did not trust my client and did not view her case as important,” Rao said.
She submitted the T visa application anyway, without the certification. The lack of certification, she said, places “a much higher burden on the victim’s advocate to insert more details and documents in the T visa application, all of which are potentially discoverable by counsel for the trafficker in a legal proceeding.”
Despite these hurdles, Peña Canal’s T visa application was approved in January 2009.
Peña Canal relocated to San Francisco, where she now can be legally employed. She works as a janitor at a San Francisco company, cares for seniors in their homes and cleans houses on a referral basis.
Fear of retaliation
Government agencies denying certification for T visa applicants is a common theme. Hilary Chester, associate director of anti-trafficking services at the United States Conference of Catholic Bishops in Washington, said law enforcement officials stalled on signing the certification for a client who was trafficked from El Salvador.
“I think what still bothers me personally is this notion that so much weight is given to the law enforcement piece, and that there is this requirement that a person be willing to cooperate in the prosecution,” Chester said. “I think it’s slippery.”
Her client did receive a T visa.