🦄 Investigative

Icebreaker Pt 8 – Leaked ICE Handbooks for T and U Visa Application Investigations

By Unicorn Riot

United States – Unicorn Riot obtained confidential Immigration and Customs Enforcement agent policy manuals. Icebreaker Pt 8 covers ICE’s T and U visa application agent handbooks – covering the particular classes of U.S. residency visas that help victims of crimes and human trafficking.

In recent years both T and U visas have become more challenging amid limited resources, while many visa applicants have faced personal threats and wait times stretching into multiple years. T visas are allocated for victims of human trafficking and their immediate family members. U visas are for victims of crimes who have suffered substantial abuse, and their immediate family members. (Note: ICE manuals say that these are not “visas”; however most media coverage typically describes them as visas.)

In June 2019, Colorado resident Jeanette Vizguerra was denied a U-visa six years after an application, after she suffered a violent crime in the United States. The U.S. has been trying to deport Vizguerra, who has U.S. citizen children, since 2009. Vizguerra was named one of TIME’s 100 most influential people in 2017.

Jeanette Vizguerra: Life in Sanctuary from Unicorn Riot on Vimeo.

The “T visa” program is aimed at helping protect applicants from abuse. Trafficking victims, who in many cases cannot legally be employed the U.S., faced higher risks in September 2018 when the Trump administration moved towards “public charge” restrictions.

In 2000, the Trafficking Victims Protection Act was passed by Congress (text of the law) which addressed sex trafficking and labor trafficking, and aimed at protecting people from various forms of bondage and involuntary servitude. This created the T visa system, which has resulted in, at most, a few hundred visas issued per year (latest statistics here and here).

#Icebreaker Series - Unicorn Riot series on ICE policy manuals

T visa applicants face new legal risks amid national lawsuits

As of late 2019, the situation for T visa applicants has become more complicated. After lawsuits led by state and local governments, U.S. district courts in New York (Southern District), California (Northern District), Illinois (Northern District), Washington (Eastern District), and Maryland, ordered in preliminary injunctions that the Department of Homeland Security (DHS) could not enforce parts of its attempted rules for “inadmissability” under “public charge” conditions.

On December 5, 2019, the U.S. Court of Appeals for the Ninth Circuit granted the motion by DHS to stay the injunctions (that is, permit the policy to move forward) for the California and Washington cases, while on December 9, the Fourth Circuit did the same for the preliminary injunction ordered in Maryland.

As of December 18, the US Customs and Immgration Service website about the public charge policy says “DHS remains bound by injunctions issued in cases pending before the U.S. District Court for the Southern District of New York and the U.S. District Court for the Northern District of Illinois, preventing USCIS from implementing and enforcing the rule anywhere in the United States.”

The USCIS website currently says that TANF food stamp assistance, cash assistance programs, and Medicaid long-term care such as nursing homes are all grounds to deny “admissibility” to immigrants.

According to the website people applying for T and U visas, or trying to get green cards while holding T and U visas, are free of the public charge restrictions. However, if someone gets turned down for a T or U visa, they would hence still be able to get denied residency because they applied for food stamps or cash assistance.

Wait times for U visas could be up to 15 years and 4 to 5 years to even hear from USCIS, according to attorney Allan Wernick at the CUNY Citizenship Now! project.

Widening problems with T and U visa programs intensify

Reports in the last two years have chronicled an intensifying crackdown and new bureaucratic steps leading to deportation.

Melissa Gira Grant wrote in The Appeal in August 2018 about a trafficking survivor who was now afraid to get the T visa because trying to apply for it could trigger a deportation, which ostensibly was not previously the case.

A July 2018 USCIS memo set in motion more denials by granting officials leeway to turn down applications without bothering to ask for more evidence to support them.

A February 2019 New Yorker report discussed how in 2018, due to a new rule, “applicants who are denied T visas may be required to appear in immigration court, the first step in deportation proceedings.” This immediately triggered chilling effects in T visa applications.

Also, the public charge threat requires visa-holders to try to get waivers – and without that waiver another avenue for possible deportation opens up. This can then pressure undocumented people back into the underground economy, according to advocates involved in supporting immigrants. The government has also stepped up investigations similar to the ones detailed in the leaked manual below.

In in May 2019, the U.S. Department of Labor suspended its role in certifying U and T visas. According to a June 2019 story in Bloomberg Law, Labor started asserting authority as a U visa certifier in 2011 and added T visas in 2015. Labor’s “Wage and Hour Division built a complex infrastructure to train investigators on the U and T system, designate people in each of the five regional offices to coordinate the certification inquiries” and validate claims of illegal workplace abuse to support visa applications. (Certifications are not required but can help visa applicants in the USCIS process.)

In June 2019, the Dallas Morning News editorial board wrote that the T visa program was critical for getting people “who are being exploited to step out of the shadows and work with law enforcement against human traffickers” and the administration policy shifts had worked to target victims and improve the situation for traffickers. “At its core, the T visa program aims to help law enforcement find traffickers within the United States,” wrote the board. A June 2019 podcast examined one T-visa case.

On July 9, Pacific Standard reported this policy would sideline labor inspectors who are more likely than law enforcement to have expertise and oversight workplace conditions. Pacific Standard also reported the processing time for T visa applications was between 16 and 33.5 months.

Also on July 9, NBC News reported that critics of former U.S. Labor Secretary Alex Acosta highlighted the department was seriously weakening protections for trafficking victims, while Acosta was under the cloud of obtaining a “lenient” plea deal for the late Jeffrey Epstein. Acosta resigned just three days later.

A July 2019 interview with World Politics Review, covered how quickly human trafficking protections have degraded in the last two years due to shifting executive branch policies.

An August 30 report from the Center on Media, Crime and Justice at John Jay College, ICE “U Visa” Changes Make Crime Victims Vulnerable linked the risk of getting turned over to ICE with recent changes in U visa policies, including the new policy of allowing people to be deported while they are waiting for their visas.

On November 7, Reveal News reported that police are undermining the U visa application program:

“Reveal’s analysis of policies from more than 100 agencies serving large immigrant communities found that nearly 1 of every 4 create barriers never envisioned under the U visa program. A review based on hundreds of police records and nearly 60 interviews found that victims are at the mercy of whatever internal rules police choose.” – Laura Morel, Reveal News

A summary of widely varying, and in some cases entirely blocked, local police U visa support policies can be found here.

On November 20, the Associated Press reported that a Minnesota woman was charged with attempting to obtain fraudulent U visas by enticing undocumented immigrants to get injured with a knife.

On November 21, a group of lawmakers in the Democratic Party proposed a major expansion to the U visa program which would protect immigrant workers who file labor claims.

On November 25, NC Policy Watch reported that fees for the I-192 form, which is related to the U Visa, and other related immigration form steps, are set to dramatically increase under new Trump Administration proposals. “Under the proposal, the cost of the I-192 would increase from $930 to $1,415 and the form needed to apply for citizenship would go up by $530 to a whopping total of $1,170“. This would drive fees up to $4,245 for applications to get the U visa according to Raul Pinto, senior attorney in the North Carolina Justice Center’s Immigrants and Refugee Rights Project.

More about the USCIS fee hikes were posted November 21, which could be applied as early as February 2020. The very large (81,000 word) November 14 rule proposal was published by USCIS in the Federal Register (the official repository for all federal regulatory actions).

In Massachusetts, the MetroWest Daily News reported November 24 from Framingham, that undocumented immigrants experiencing domestic violence and sexual assault increasingly fear reporting this due to fears of deportation. The proposed Safe Communities Act (S. 1401 / HD. 3573) is aimed at isolating local police from federal immigration law enforcement or working with ICE. MetroWest reports “about one in six immigrants in Massachusetts is undocumented, according to the Massachusetts Immigration and Refugee Advocacy Coalition.”

On November 27, KYW Newsradio in Philadelphia, reported that Carmela Hernandez, a Mexican mother of four, is celebrating her second Thanksgiving Day in sanctuary as she has been awaiting a U visa decision for two years, part of a national action using fasting and hunger strikes. Members of her family were murdered by drug gangs according to the pastor who is hosting Hernandez. Unicorn Riot covered an event supporting Hernandez in 2018.

On December 6, the Houston Chronicle editorial board criticized the spiraling wait times for many types of immigration applications including U visas.

On December 12, the Los Angeles Times reported that police believe U visa applications are increasing after police improved indigenous language competency and more immigrants are reporting crimes.

With both state governments and all three branches of the federal government involved in T and U visa policy and lawsuits, this issue is likely to remain unstable for some time.

T Nonimmigrant Status Handbook

The ICE/HSI T Nonimmigrant Status Handbook was published October 5, 2009 and remained official policy until at least the end of 2016 according to a FOIA obtained by GovernmentAttic.org. The 33 page document is marked “Official Use Only“. Download the file directly here. The document was written before the Office of Investigations (OI) became a fully fledged agency within ICE, Homeland Security Investigations (HSI).

T-nonimmigrant-status

p2: The Handbook “provides a single source or national policies, procedures. responsibilities, guidelines, and controls to be followed by U.S. Immigration and Customs Enforcement (ICE) OI Special Agents setting forth their responsibilities when applicants for the T nonimmigrant status are human trafficking victims in OI investigations. This Handbook contains instructions and guidance to help ensure uniformity and operational consistency among all OI field offices. Oversight over the T Nonimmigrant Status Program resides with the Investigative Support Unit, Investigative Support Division, OI.”

Chapter 1. PURPOSE AND SCOPE

p6: “T Nonimmigrant Status is often incorrectly referred to as a “T Visa.””

Chapter 2. AUTHORITIES

p6-p7: Covers Trafficking Victims Protection Act of 2000, Trafficking Victims Protection Reauthorization Act of 2003, Trafficking Victims Protection Reauthorization Act of 2005, and the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008.

Chapter 3. DEFINITIONS

p8-11: Covers the terms like Continued Presence, Coercion, Debt Bondage, Involuntary Servitude, Peonage, and certain forms.

Chapter 4. RESPONSIBILITIES

p11-12: Bureaucratic structure of managing T visas.

Chapter 5. HUMAN TRAFFICKING

p12: “Human trafficking is a global, widespread form of modern-day slavery. Traffickers often prey on vulnerable people who are unemployed or underemployed and who may be desperate to flee conditions of crushing poverty or civil unrest in their home countries. […] Although trafficking victims are often found in prostitution, domestic servitude, and sweatshop operations, they are also frequently exploited in various niches of the agricultural, hospitality, and other low wage sectors. Essentially, victims of trafficking can be found anywhere in the United States, in both urban and rural communities, doing almost anything that generates profit for their traffickers. It is often said that human trafficking is a crime in which victims are hidden in plain sight; they are forced to work in virtually every sector of our economy but are kept invisible and powerless through threats, abuse, and coercion.”

p13: “OI also utilizes asset forfeiture as a tool to target and seize assets to reduce the financial incentives to engage in the crime of human
trafficking.”

p13: “In order to be fully responsive to victims of human trafficking, it is essential to understand the legal framework that creates protections for victims, such as immigration relief. […] Unlike human smuggling, human trafficking is not defined by movement or how the border was crossed, but rather by methods used to obtain and maintain labor for purposes of exploitation.”

p13-14: “The T Nonimmigrant Status was established as a new classification to create a safe haven for certain eligible victims of trafficking who assist law enforcement authorities in investigating and prosecuting the perpetrators of these crimes. Victims with a bona fide T Nonimmigrant Status application receive work authorization as well as certification for refugee benefits through the Department of Health and Human Services’ Office of Refugee Resettlement. Victims submit applications for a T Nonimmigrant Status to the USCIS Vermont Service Center, using USCIS Form I-914. […] the submission of Form I-914B serves as an endorsement of both victim status and cooperation with law enforcement.”

Chapter 6. CONTINUED PRESENCE

p14: CP is “a 1-year renewable form of immigration relief that is adjudicated by the ICE OIA LEPB. […] CP must be requested by a federal LEA. (Note: Only ICE and the Federal Bureau of Investigation have jurisdiction to investigate the crime; in rare situations, the Department of Labor might apply.)”

Chapter 7. T NONIMMIGRANT STATUS ELIGIBILITY

p14: “Recipients receive employment authorization and public benefits that equal those provided to refugees. Refugee benefits can include cash assistance, medical assistance, employment services, vocational training, English language instruction, translation services, and case management.”

p15: Qualifications to apply for T-1 Nonimmigrant status.

Chapter 8. T NONIMMIGRANT STATUS APPLICATION PROCESS

p15: Submitting a series of forms and possible supplementals.

Chapter 9. DERIVATIVE T NONIMMIGRANT STATUS

p16: Other family members can apply including parents, spouse and children. (These have different T numbers.)

Chapter 10. LAW ENFORCEMENT AGENCY CERTIFICATION

p16: Special agents are supposed to follow up on whether other law enforcement agencies have been involved and if the applicant has been cooperative with their requests.

Chapter 11. ADJUSTMENT OF STATUS

p16-17: “Continuous presence” in the U.S. is an important part of the policy. Covers trying to get permanent residency (green card) after three years of being a “T-1 nonimmigrant”. Includes “establish[ing] that they have been persons of good moral character” and complied with law enforcement or established “they would suffer extreme hardship involving unusual and severe harm upon removal” from the U.S.

Chapter 12. T NONIMMIGRANT STATUS-RELATED PROCEDURES

p18-21: The optional law enforcement agency certification. “OI must have investigated or be investigating a crime where acts of trafficking are at least one central reason for the commission of that crime.”

p21: USCIS can revoke T nonimmigrant status if they stop giving cooperation with an investigation or if the law enforcement agency withdraws a certification or disavows former statements.

p22: Assistance from NGOs for trafficking victims.

p24-29: USCIS Form I-914, Supplement B – Declaration of Law Enforcement Officer for Victim of Trafficking in Persons

p30-31: Sample Letter Establishing Continued Cooperation

p32-33: Acronyms

U Nonimmigrant Status Handbook

The ICE/HSI U Nonimmigrant Status Handbook was published December 1, 2009 and remained official policy until at least the end of 2016 according to a FOIA obtained by GovernmentAttic.org. The 66 page document is marked “Official Use Only“. Download the file directly here. The document was written before the Office of Investigations (OI) became a fully fledged agency within ICE, Homeland Security Investigations (HSI).

U-nonimmigrant-status

p2: The Handbook “provides a single source of national policies, procedures, responsibilities, guidelines, and controls to be followed by OI Special Agents and Victim Assistance Coordinators”.

Chapter 1. PURPOSE AND SCOPE

p7: “[…] applicants for the U Nonimmigrant Status are victims of certain qualifying criminal activity in OI investigations. (Note: The U Nonimmigrant Status is often incorrectly referred to as a “U Visa.”)”

Chapter 2. INTRODUCTION

p7: “The U Nonimmigrant Status provides law enforcement officials a means to regularize the status of aliens who assist during investigations or prosecutions of criminal activity.”

p8: The USCIS Vermont Service Center is the central location for processing U Nonimmigrant Status applications. In describing previous policy era before the handbook: “The request for interim relief required a letter of certification from a law enforcement agency attesting to the fact of the helpfulness of the alien in the investigation or prosecution of the qualifying crime. Any law enforcement official investigating or prosecuting the qualifying crime could provide the letter attesting to the fact that the criminal activity occurred years prior to the request or that the case was closed and was not a determinative factor.”

p8: Eligibility includes: “substantial physical or mental abuse”, “possesses information concerning the qualifying criminal activity”, “has been, is being, or is likely to be helpful in the federal, state, or local investigation or prosecution”, and it happened in U.S., territories, possessions or military bases.

p9: Status regulation including how forms related to USCIS Form I-918 are supposed to be completed by the applicant and law enforcement officials supporting them.

p10: Adjustment of status . “Victims of qualifying criminal activity can be valuable sources of information for OI investigations. However, benefits should not be discussed to gain a victim’s cooperation. The U Nonimmigrant Status may be a primary motivation for some victims to cooperate in an investigation or prosecution of the criminal activity. SAs may not make any promises regarding the alien’s ability to obtain a U Nonimmigrant Status from USCIS.”

Chapter 3. DEFINITIONS

p10-14: Jargon on this subject.

Chapter 4. AUTHORITIES/REFERENCES

p14-16: Laws, federal regulations, memos and other references supporting the U Nonimmigrant Status policies.

Chapter 5. RESPONSIBILITIES

p16-17: Levels of bureaucracy involved and “Victim Assistance Coordinators in Field Offices”

Chapter 6. PROCEDURES

p17: “Director of OI delegated the authority to sign U Nonimmigrant Status certifications to the SACs”. Special Agents in Chief are the directors of ICE/HSI field offices. […] each petition should be thoroughly vetted to make an affirmative determination that the petitioner satisfies the eligibility requirements. […] The SAC certification process will operate in accordance with the following principles so that it is and is seen to be: (1) objective, so that the recommendations are based on clear, explicit, and straightforward processes and terms of reference; (2) consistent, with procedural guidelines and terms of reference applied in the same way over time; and (3) timely, so that SACs manage requests for certification within the prescribed time period.”

p18: “Certification Review Vetting Team” structure. “Members of the CRVT will vote independently to determine if the I-918 petition will be recommended for approval or denial. A simple majority vote is needed.”

p18-19: Certification Review Process has several tiers and roles for forwarding certifications around.

p19-20: Certification Review Procedures including logging investigation data.

p20-21: Certification Review Vetting Team “shall be chaired by a senior manager (below the SAC level) and meet in accordance with locally established procedures” and have 3 or 5 members. Tasks include “Query all relevant OI databases, including the Treasury Enforcement Communications System (TECS) II, for information about the victim’s claims;” and “Enter U Nonimmigrant Status certifications (approved or denied) into TECS for management accountability purposes.” See Icebreaker Part 7 for more information on TECS case management. These reviews are supposed to be completed within 30 days. “CRVT meetings and their deliberations are not open to either petitioners or the public. The CRVT recommendation should be made by consensus whenever possible; if consensus is unable to be reached, both the majority’s recommendation and the minority’s view will be part of the CRVT certification report to the SAC.”

p22-23: Assistant Special Agent in Charge Review and Certifying Official. “A SAC’s decision to provide a certification is entirely discretionary. SACs are under no legal obligation to complete Form I-918B. […] SACs will review and sign the law enforcement certification or issue a denial letter within 45 calendar days.”

p23: Administrative Procedures for Completed Certifications: “The work folder containing copies of the I-918B, approval letter, U Certification Vetting Document, TECS copies, document routing form showing written concurrences, and all related notes will be properly filed.”

Chapter 7. ADJUSTMENT OF STATUS

p24-25: Similar to the T Nonimmigrant Status handbook it is possible to get ‘adjustment of status’ to obtain permanent residency (a green card) for U Nonimmigrant Status holders.

Chapter 8. CONFIDENTIALITY/DISCLOSURE OF INFORMATION

p25-27: There are penalties for disclosure of information. “OI employees are prohibited from making an adverse determination of inadmissibility or removability of aliens using information provided solely by the perpetrator of the substantial physical or mental abuse and the criminal activity”. Also there are options for releasing information to Congress and local governments for determining if they are eligible for benefits.

Chapter 9. MONITORING AND REVIEW

p27: Details about oversight, “management accountability” and performance indicators. “The Director of OI shall provide independent assurance to the Assistant Secretary on the fairness, consistency, and potential impact that the U Nonimmigrant Status certification process may have on petitioners to whom it is applied.”

Chapter 10. SUPPLEMENTAL U NONIMMIGRANT STATUS INFORMATION

p27-35: Large and detailed list of reasons that influnece the CRVT to support or deny a Form I-918 Supplement B Nonimmigrant status certification. These include: Vermont Service Center the ‘sole jurisdiction’ for deciding petitions; Victim of Qualifying Criminal Activity; Similar Activity; Witness Tampering, Obstruction of Justice, or Perjury; Incapacitated or Incompetent Victims; Culpability; Substantial Physical or Mental Abuse; Possesses Information; Helpfulness to Law Enforcement Authorities; Petitioner Requirements; Criminal Activity Violated U.S. Law or Occurred in the United States; Criminal Activity Violated the Laws of the United States; Criminal Activity in the United States; Intervening Circumstances; Victim Under 16 Years of Age; Procedure for Contacting Law Enforcement; Law Enforcement Withdraws Certification; Filing from Outside the United States; Inadmissibility; Evidentiary Weight of the Law Enforcement Certification; Employment Authorization; Unlawful Presence; Duration of Status; Revocation; Notice to Appear; Immigration Proceedings; Open Proceedings at the Time of Filing; Final Orders of Removal, Deportation, or Exclusion; Effect of Approvals on Proceedings; Trafficking Referrals.

Appendix A USCIS Form I-918, Supplement B – U Nonimmigrant Status Certification

p36-42: The certification that gets evaluated inside ICE/HSI which may lead to granting the U Nonimmigrant Status.

Appendix B Certification Review Vetting Sheet

p43-48: Checklist table of considerations that ICE/HSI would use for vetting the application.

Appendix C Sample U Nonimmigrant Status Certification Letter

p49-50: Approval of certification letter template. This approval influences the USCIS decision on the petition.

Appendix D Sample Form I-918B Denial Letters

p51-59: A variety of letter templates for turning down I-918B certifications for different reasons.

Appendix E Sample U Adjustment Support Letter

p60-61: Letter template to support applications for permanent residence (green card) or other status change.

Appendix F Sample U Adjustment Refusal to Assist Letter

p62-64: Letter tmeplates for refusing to assist ICE or other law enforcement in the context of trying to get permanent residency or adjustment status.

Appendix G Acronyms

p65-66: Acronyms in the handbook.

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#Icebreaker Series - Unicorn Riot series on ICE policy manuals

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Published December 17, 2019
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