T6 and Adjustment of Status (AOS) for U and T visas

On April 15, 2015, the USCIS issued a policy memorandum (PM-602-0107) establishing a new derivative category for the adult or minor child of a derivative beneficiary of a T visa. Further, the policy memo established guidelines for the related T and U visa nonimmigrant adjustment of status applications. The policy changes detailed in the memo are binding on all USCIS employees.

New T-6 Derivative Category

Section 1221 of VAWA 2013 expanded the derivative category based on present danger of retaliation to include children (adult or minor) of the principal’s derivative family members if the derivative’s child (adult or minor) faces a present danger of retaliation as a result of the principal alien’s escape from trafficking or cooperation with law enforcement. In practical terms, these family members would generally be the 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.

Usually the term “son or daughter” is a term of art meaning a child who is married and/or over the age of 21, while “child” means a child who is unmarried and under the age of 21. “Adult child” is not a term used in the INA or in other immigration contexts. “Minor” may have different meanings in different contexts. USCIS construes the meaning of the language “adult or minor children” to encompass both the “son or daughter” and “child” immigration definitions. Therefore, persons of any age and any marital status are “adult or minor children” and may be eligible for T-6 derivative status. The “derivative beneficiary” must have derived T-2, T-3, T-4, or T-5 nonimmigrant status through the principal in order for the derivative beneficiary’s child (adult or minor) to be eligible for the new T-6 category.

In order to qualify for the new derivative category, however, the parent of the adult or minor child (T-6) must be “accompanying or following to join” the principal applicant, that is, the holder of the T visa. Thus, if the parent of the adult or minor child (new T-6 category) did not go with the principal by receiving derivative T nonimmigrant status, he or she cannot be considered a derivative beneficiary. And with no derivative beneficiary, the adult or minor child is not eligible for the T-6 classification.

This is a unique visa category. Whereas other derivative visas are based on a relationship with the principal visa holder directly, the T-6 category creates visa available through a relationship with a derivative visa holder. Therefore, in order to be eligible for T-6 classification, the adult or minor child must establish the qualifying relationship to his or her parent who actually derived T nonimmigrant derivative status through the principal beneficiary.

Eligibility

Based on the above policy, the USCIS interprets the new derivative category to require:

• Establishing the familial relationship between the T-6 family member and his or her parent;
• That 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
• Establishing that 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.

One important aspect of the new T-6 category is that applications for the derivative visas need not be contemporaneous. If the principal’s derivative beneficiary currently holds a derivative visa (i.e., T-2, T-3, T-4, or T-5), was granted one in the past, or the application is currently pending, their adult or minor child is eligible for the T-6. This is true even in the event of the death of the principal’s derivative beneficiary. For example, if the principal’s spouse held T-2 status but then died before the principal files for T-6 status for the spouse’s adult child, the adult child may still be eligible for T-6 status. Additionally, if a parent who had obtained T-4 status allowed his or her status to lapse without extending it, the principal could still file for T-6 status for the T-4 parent’s adult or minor child if he or she faced a present danger of retaliation. Thus, the T-6’s parent does not have to hold derivative status at the time of the T-6 application.

If, however, the potential T-6’s parent never held T-2, T-3, T-4 or T-5 status and the parent is not eligible or available for such status concurrently, then the family member would not be eligible for T-6 status. For example, if a T-1 was not married to the mother or father of a child who is over the age of 21, that mother or father is not eligible for T-2 status. Therefore, there is no derivative T-2 through which the adult or minor child can derive status, and he or she would not be eligible for T-6 status. Additionally, if the T-1 principal’s parent is deceased and never held T-4 status, then the parent’s child (who is not eligible in some other way as the T-1’s sibling) would not be eligible for T-6 status. Moreover, there is no derivative visa available for children of the T-6 visa holder. That child would have to qualify through the sibling of the T-1, but the sibling would only be eligible for T-6 status and not T-5 status. Additionally, if the T-6 is married, there is no T derivative status for the T-6’s spouse.

The application process for the new T-6 family members will follow the same process as for the other derivative T nonimmigrants. The principal alien may file a Form I-914, Supplement A, on behalf of his or her derivative beneficiary’s T-6 family members. The T-2, T-3, T-4, or T-5 does not file directly for his or her T-6 family member. The T-1 must file the Form I-914, Supplement A. A T-1 principal can file for all derivatives at the same time (although not required) to ensure quicker family unity and protection from harm. However, just as derivative beneficiaries cannot be approved before a principal T-1, family members cannot be approved for T-6 status before the derivative beneficiary is approved for T-2, T-3, T-4, or T-5 status. If the derivative beneficiary is denied status, then the T-6 will also be denied. USCIS may approve all the family members in T-2 through T-6 status at the same time.

Applicants must submit evidence that demonstrates the parent-child relationship of the family member to the principal’s derivative beneficiary, the derivative status (pending, currently holds status, or approved in the past) of the T-2, T-3, T-4 or T-5 derivative beneficiary that the T-6 qualifies through, and the present danger of retaliation to the family member.

Present danger will be evaluated on a case-by-case basis. An applicant may submit a statement describing the danger the family member faces and how the danger is linked to the victim’s escape from the severe form of human trafficking or cooperation with law enforcement. An applicant’s statement alone, however, is not sufficient. Other examples of evidence may include: a previous grant of advance parole to a family member; a signed statement from a law enforcement agency (LEA) describing the danger of retaliation; trial transcripts, court documents, police reports, news articles, copies of reimbursement forms for travel to and from court; and affidavits from other witnesses.

 

Adjustment of Status for T and U applicants from the Commonwealth of the Northern Mariana Islands (CNMI)

The policy memorandum also creates a statutory fix for victims in the Commonwealth of the Northern Mariana Islands, which equally applies to T and U nonimmigrants. Previously, although people were eligible to apply for a T visa based on their physical presence in the CNMI, they had to travel to Guam or elsewhere in the U.S. to actually be admitted a T nonimmigrant. This was due to the requirement for adjustment of status for T and U nonimmigrants to be continuously physically present in the U.S. since admission as a T or U nonimmigrant, and to the fact that time in the CNMI did not count as time in the U.S. The policy memo creates an exception to this rule, so that time in the CNMI counts as time admitted as a T or U nonimmigrant for establishing physical presence for purposes of adjusting the T or U visa holder’s status to a lawful permanent residence. Even though physical presence is not a requirement for U nonimmigrant status, the fix applies to U nonimmigrants as well. Thus, a U nonimmigrant may maintain continuous physical presence if they were granted a U visa and resided in the Commonwealth of the Northern Mariana Islands.