Last week, USCIS issued an interim policy memorandum (IPM) that provides guidance on legislation that would affect the T nonimmigrant status program and related T and U nonimmigrant adjustment of status applications.
To begin with, the Immigration and Nationality Act (INA) allows a T-1 (the victim of a severe form of trafficking in persons) to request derivative status for certain family members. Section 1221 of the Violence Against Women Reauthorization Act of 2013 (VAWA 2013) expanded the derivative category even further to address situations where a present danger of retaliation exits. For example, derivatives would include children (adult or minor) of the T-1’s derivative family members if that child faces a present danger of retaliation as a consequence of the T-1’s escape from trafficking or cooperation with law enforcement.
Specifically, INA section 101(a)(15)(T)(ii)(III) has been amended to read:
If accompanying, or following to join, the alien described in clause (i)—any parent or unmarried sibling under 18 years of age, or any adult or minor children of a derivative beneficiary of the alien, as of an alien described in subclause (I) or (II) who the Secretary of Homeland Security, in consultation with the law enforcement officer investigating a severe form of trafficking, determines faces a present danger of retaliation as a result of the alien’s escape from the severe form of trafficking or cooperation with law enforcement.
More importantly, this new T-6 category expands the eligibility beyond the traditional categories of family members (i.e. principal’s grandchild, the principal’s spouse’s child (if not otherwise already eligible as the principal’s child), the principal’s sibling (if not otherwise already eligible, such as those over the age of 18 or married), and the principal’s niece or nephew) who typically may be eligible for derivative status and does not have a close counterpart.
Finally, the IPM also sets forth that in order to be eligible for the derivative category, USCIS will require evidence establishing: (i) the familial relationship between the T-6 family member and his or her parent; (ii) the T-6 family member’s parent has been granted T-2, T-3, T-4, or T-5 status as the principal’s derivative beneficiary; and (iii) the T-6 family member faces a present danger of retaliation as a result of the principal’s escape from trafficking or cooperation with law enforcement. This IPM is effective immediately.
For more information, please contact Maria del Carmen Ramos at 813.227.2252 or firstname.lastname@example.org.