Foreign-born survivors of human trafficking applying for U.S. visas have two options: T or U visas. T visas are specific to sex trafficking survivors, and U visas include sex trafficking but encompass a wider variety of crimes. Cooperation with law enforcement is a requirement for each visa application. There are exceptions to the rule of cooperation. A child, for example, doesn’t have to cooperate. Adults must prove their level of trauma is “sufficient” to merit an exception. This law creates tension. Survivors need help. But law enforcement also needs help to crack down on trafficking. How much should be required of sex trafficking survivors? We hear from McKenzie Harker, staff attorney at the Victim Rights Law Center.
The following transcript was created by a computer and edited by a volunteer:
Dave Miller: From the Gert Boyle Studio at OPB, this is Think Out Loud, I’m Dave Miller. Back in the fall, we had two conversations about sex workers and human trafficking. We heard from Karina Brown, who wrote about concerns of sex workers that stings by Portland police intended to help them were actually making them feel less safe. We also talked to a lieutenant from the police bureau who explained their approach to dealing with trafficking. We’re going to turn now to another important piece of this issue. The intersection of human trafficking and immigration law. Since 2000 victims of labor or sex trafficking have had access to special visas. In order to qualify those victims have to cooperate with law enforcement. McKenzie Harker joins us with the details. She is a Senior Attorney at the Victim Rights Law Center. McKenzie Harker, welcome.
McKenzie Harker: Thanks, Dave.
Miller: Can you explain how a T Visa works?
Harker: Yeah, so a T visa is like you said, it’s a visa that’s available for certain trafficking survivors and it’s a temporary visa. So it provides a survivor with four years of legal status in the US and the ability to work and obtain a Social Security Number, and then it also provides a pathway to permanent residency in the US as well as US citizenship.
Miller: Another visa program was established at the same time called a U visa. How is this different?
Harker: They’re really similar. They’re structured the same. So the U Visa is also a four year visa that provides the same pathway to residency and later citizenship. The U Visa just pertains to a broader set of crimes, it’s not specific to human trafficking.
Miller: What’s the intent of these programs?
Harker: Really, the intent behind them was to encourage folks who are undocumented crime survivors to feel comfortable coming forward to law enforcement and reporting their crimes without fear of retaliation in terms of their status in the US. So basically, to encourage immigrants to report crimes without fear of being deported.
Miller: How common is it for people to apply for these types of visas in your experience?
Harker: The U visa is really, really common in my experience, I’ll specify. So I worked at a law firm that specifically serves sexual assault survivors. So all of the clients I work with are crime survivors and most of them qualify for these visas. So in my work, they’re incredibly prevalent. And the U visa, there’s a huge number of applications received by immigration each year. The T vis is much less common, but still relatively common within my work.
Miller: So let’s turn to what one of the requirements here is that I mentioned briefly – what does it mean for people to cooperate with law enforcement?
Harker: So at the very minimum, it requires a report to law enforcement. I think in the T Visa context, it’s arguable that for some survivors, it may not require even that, so the T Visa specifically talks about complying with a reasonable requests from law enforcement in an investigation unless the trafficking survivor was under 18 when the trafficking happened or is unable to cooperate due to trauma, basically. Even in those cases, I think it’s sort of unclear whether at least a report to law enforcement is required.
Miller: In movies and in tv we see images of people being asked by police officers or prosecutors to cooperate after they’ve been accused of something. It always seems sort of coercive in that context. Is that the way victims of crimes who come forward, is that the way they experience this? ‘You can get in line to get your visa, but you’re going to have to do what we say?’
Harker: You know, I don’t think that at least with the survivors that I work with, I don’t think that they view it that way. Honestly, I think that they’re happy to cooperate, given this sort of extra reassurance that immigration action won’t be taken against them. Honestly, in a lot of my cases, I think the victims would like to see the investigations go further than they end up going, and are happy to participate. But yeah, I think that there are always survivors on the flip side of it, who probably wouldn’t report to law enforcement if it weren’t for this Visa, but because they want the visa, they feel that that’s what they have to do and so they do that even if it poses a risk to their safety.
Miller: I’m curious about when you said that, a lot of your clients actually wish law enforcement would go further. What exactly are you thinking of?
Harker: Oh, I just think that law enforcement faces a lot of their own constraints that prevent them from being able to investigate and prosecute every crime that’s reported to them. And so I know that for a lot of the survivors that I work with, they’re reporting their victimization to law enforcement in the hope that their case will be investigated and prosecuted, but for one reason or another, it isn’t. So in a lot of cases, these visas are what they’re left with as sort of a remedy that can help make them feel ‘whole.’
Miller: If you’re just tuning in, we’re talking right now about the visas that victims of human trafficking and other crimes can apply for. McKenzie Harker is with us. She is a Senior Attorney at the Victim Rights Law Center. You noted that there are exceptions to the rule that these visa applicants have to cooperate with law enforcement. Can you give us a better sense for how those exceptions work?
Harker: Yeah, so in the T Visa context, the exceptions are a bit more clear under the law. So it specifically says the victims who are minors when they’re trafficked aren’t required to cooperate with law enforcement, they’re not required to comply with these reasonable requests from law enforcement for assistance and that same rule applies for folks who just aren’t able to cooperate because of they either physical or psychological trauma that they’re experiencing. In the U Visa context, it’s a little less clear. The statute just talks about complying with reasonable requests for assistance. So there’s room to argue that requests aren’t reasonable based on the victim’s situation, but it’s not as clearly laid out as it is with the T Visa.
Miller: Do you get the sense that this cooperation, is it more so law enforcement can have information to prosecute crimes, or is it more so the people who are overlooking the papers for the visa application can be assured that indeed the person applying for the visa was the victim of a crime?
Harker: I think it’s both. I think it’s definitely both. I think that the Congressional intent behind these visas in the first place was that it would be a tool to support law enforcement. So a way for law enforcement to detect crimes that were being committed against folks who are undocumented, when without these sorts of visas, it’s understandable that those victims would have a lot of fear in coming forward. But I also think that it is a statutory framework that sets out these visas and there has to be some sort of way that immigration can verify whether someone qualifies for these visas.
Miller: The exceptions that you outlined for age or, or particular circumstance, they do show in statute somewhat of an awareness of trauma. I’m curious from your perspective how you would assess the level to which this immigration bureaucracy and law enforcement bureaucracy, the level to which their processes really are trauma informed right now.
Harker: You know, I think that in some ways it’s hard to tell. It’s mostly immigration that’s adjudicating these applications. So they’re the ones who are deciding whether someone meets the threshold for that exception. Obviously if someone’s under 18, that’s easy to prove. The trauma exception is a little different. So the officers that review these applications are supposed to be specifically trained in victimization and trauma, the things that come with trauma and how trauma affects victimization and all of those things. I think that these officers are ideally better at understanding trauma and how it impacts an individual than your average immigration officer, but I think it ebbs and flows, I think it depends on which officer you get. I think it’s still a very subjective requirement.
Miller: As you noted, there were a few intents on Congress’s part when these visa programs were created 22 years ago, but one of them is to encourage people who have been the victims of various crimes to actually have faith in law enforcement… people who, because of their immigration status, may have been, for very good reason, very wary of ever going to US authorities or local authorities. Do you think that’s been successful? Have these visa programs shown women and men that they can turn to law enforcement?
Harker: You know, I haven’t looked at statistics. It would be interesting to look at crime reporting statistics correlated against these visas and when they were created. I think one piece of it is what you’re saying, it’s supposed to give them faith in law enforcement. The other piece of it is that traffickers, abusers commonly use immigration status as a way to intimidate and control their victims. And so it also helps free the victim from that aspect as well, so that they can say once they know about these visas, ‘I feel comfortable standing up to my abuser and reporting to law enforcement because I know my abuser can’t use this against me, in the way that they’re saying they will.’
Miller: How long can it take for these visas to be processed?
Harker: The T Visa right now is taking, I think, about 1.5 to 2.5 years, the U Visa is much, much slower. It takes 5,6,7 years to process.
Miller: What options do people have while they’re waiting for those visas to be processed?
Harker: I mean, not a whole lot, honestly. The U Visa has just recently changed their policies to allow folks to apply for a work permit while their application is pending, although the rollout is taking some time. So it still is a number of years before someone would even get a work permit and a Social Security Number. The T Visa doesn’t allow for a work permit while someone is waiting for their application to be adjudicated. But the applications are also adjudicated much more quickly.
Miller: If someone’s listening right now who is a victim of sex trafficking or another crime and is undocumented and did not know that this was an option, what would you want them to know?
Harker: You know, I just always really want to encourage victims to obtain as much information as they can, so that they can make informed decisions for themselves based on their situation. Obviously, these remedies aren’t ideal for everyone because for some people reporting to law enforcement is just too big of a threat to their safety. But for other folks, these can really be a tool by which they can free themselves from the trafficking that they’re suffering or the abuse that they’re suffering and change their lives; pursue working legally in the US, getting legal status, becoming a permanent resident, becoming a US citizen. So it’s definitely, you know, not the right visa, the right approach for everyone, but for a lot of survivors, I think it can be a really, really empowering tool if they have full information and understand what the process looks like and what they’re applying for.
Miller: Mackenzie Harker, Thanks for joining us today.
Mackenzie Harker: Yeah, thanks so much, Dave.
Miller: Mackenzie Harker is a Senior Attorney at the Victim Rights Law Center.
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