Chapter 10 - Duration and Extensions of Status

A. Overview

T nonimmigrant status is limited to 4 years for a principal T nonimmigrant, unless the principal qualifies for an extension.^[1] USCIS may grant eligible family members derivative T nonimmigrant status for a period that does not exceed the expiration date of the period approved for the T-1 principal.^[2]

T nonimmigrant status is extended by operation of law during the time that a principal or eligible family member’s Application to Register Permanent Residence or Adjust Status (Form I-485) under INA 245(l) is pending.^[3] Additionally, as a matter of discretion, USCIS may grant an extension of T nonimmigrant status for up to 4 additional years in the following two circumstances:

A law enforcement agency (LEA), prosecutor, judge, or other authority investigating or prosecuting activity relating to human trafficking certifies that the presence of the nonimmigrant in the United States is necessary to assist in the investigation or prosecution of such activity;^[4] or
USCIS determines that an extension is warranted due to exceptional circumstances.^[5]

B. Applications for Extensions of Status

1. Extensions Based on Adjustment of Status Application

To receive an extension of T nonimmigrant status based on filing an Application to Register Permanent Residence or Adjust Status (Form I-485) under INA 245(l), the T nonimmigrant must file the application in accordance with the form instructions.^[6] If the T nonimmigrant files the adjustment application while still in valid T nonimmigrant status, the applicant does not need to file an Application to Extend/Change Nonimmigrant Status (Form I-539).

However, if USCIS receives the adjustment application after the period of T nonimmigrant status has expired, the filing does not operate to extend T nonimmigrant status. The Notice of Action (Form I-797) receipt notice for the adjustment application indicates that for applicants who properly and timely file their adjustment application, USCIS extends their T nonimmigrant status for as long as the adjustment application is pending.

Because both timely and untimely applicants receive the receipt notice, the receipt notice by itself does not demonstrate an automatic extension of T nonimmigrant status. Applicants may provide both the receipt notice and the Arrival/Departure Record (Form I-94) showing their most up-to-date period of T nonimmigrant status to demonstrate that their adjustment applicant was timely filed and their T nonimmigrant status has been automatically extended.

The extension of T nonimmigrant status is valid until USCIS makes a decision on the adjustment application and, during that time, the applicant continues to be in valid T nonimmigrant status with all the associated rights, privileges, and responsibilities. T nonimmigrants seeking to adjust status are authorized to work in the United States while their adjustment application is pending.

Proof of Employment Authorization

Principal T-1 nonimmigrants seeking to adjust status may present a Form I-94 reflecting their most recent validity period of T-1 nonimmigrant status with the receipt notice as evidence of employment authorization for 24 months from the expiration date on the Form I-94, unless the adjustment application is denied or withdrawn, whichever is earlier.

Principal T-1 nonimmigrants seeking to adjust status may file an Application for Employment Authorization (Form I-765) concurrently with the adjustment application to obtain an Employment Authorization Document (EAD). While the adjustment application is pending, USCIS issues any EAD, as well as renewals of such EAD, using the (c)(9) eligibility code.^[7]

USCIS also issues derivative T nonimmigrants who properly file an adjustment application a receipt notice. USCIS does not extend the status of a derivative T nonimmigrant based solely on the principal T nonimmigrant’s pending adjustment application. Derivatives must independently file an adjustment application. To obtain employment authorization during the extended period of T nonimmigrant status, derivative T nonimmigrants must file an Application for Employment Authorization (Form I-765).

2. Extensions Based on Law Enforcement Need or Exceptional Circumstances

To request an extension of T nonimmigrant status based on law enforcement need or exceptional circumstances, the T nonimmigrant must file an Application to Extend/Change Nonimmigrant Status (Form I-539), along with supporting evidence, in accordance with the form instructions. The T nonimmigrant bears the burden of establishing eligibility for this discretionary extension of status.

Derivative family members who have not previously entered or resided in the United States as a T nonimmigrant cannot receive an extension of status. Instead, USCIS may issue an amended approval notice with updated validity dates.

If USCIS approves the Form I-539, USCIS issues a notice of extension of the T nonimmigrant status on a Notice of Action (Form I-797).

The extension of T nonimmigrant status based on law enforcement need or exceptional circumstances is valid for 1 year from the date the initial T nonimmigrant status ends. In the case of a Form I-539 untimely filed after T nonimmigrant status has expired, the extension is valid from the date the previous status expired and for 1 year from approval of the extension.^[8] During that period, the applicant continues to be in valid T nonimmigrant status with all the associated rights, privileges, and responsibilities.

USCIS issues any EAD (including renewals) using the (a)(16) eligibility code for principals and (c)(25) eligibility code for derivatives.^[9] Applicants must file an application for employment authorization in order to receive an EAD, which they may file concurrently with Form I-539.

C. Timing of Application

The applicant should file the Application to Extend/Change Nonimmigrant Status (Form I-539) before the applicant’s T nonimmigrant status expires. USCIS, however, has discretion to grant an extension after the expiration of the status.^[10] When filing a Form I-539 untimely, the applicant should explain the reason(s) for the late filing.^[11]

D. Evidence

1. Law Enforcement Need

In cases in which the T nonimmigrant is filing for an extension of status based on law enforcement need, supporting evidence may include:

A newly executed Declaration of Law Enforcement Officer for Victim of Trafficking in Persons (Form I-914, Supplement B); or
Other evidence from a law enforcement official, prosecutor, judge, or other authority who can investigate or prosecute human trafficking activity and was involved in the applicable case. The applicant must include evidence that comes directly from an LEA.

USCIS does not require Form I-914, Supplement B to demonstrate law enforcement need. The applicant may submit a letter on the agency’s letterhead, emails, or faxes from an LEA or any other credible evidence.

2. Exceptional Circumstances

Where T nonimmigrants are filing for an extension of status based on exceptional circumstances, applicants may submit their own statement and any other credible evidence to establish exceptional circumstances. Such evidence could include, but is not limited to:

Medical records;
Police or court records;
News articles;
Correspondence with a U.S. embassy or consulate; and
Affidavits of witnesses.^[12]

To establish eligibility for an extension of status due to exceptional circumstances, applicants should provide evidence showing how the exceptional circumstances necessitate the continuance of T nonimmigrant status.

While an applicant can file more than one extension of status, if the extension of status is based on the same evidence as a prior request, the mere fact that USCIS previously found the circumstance to be exceptional does not mean that USCIS will come to the same conclusion a second time. USCIS considers every request on a case-by-case basis and based on the evidence presented with the request.

The need to accrue continuous physical presence to be eligible to adjust status is not generally considered an exceptional circumstance warranting an extension of status. However, USCIS can consider delays in consular processing for derivatives to be an exceptional circumstance that justifies extending the principal’s T nonimmigrant status, even if it appears the principal will not be able to adjust status under INA 245(l).

E. Considerations for Family Members

To be eligible to apply for adjustment of status, a family member who is a derivative T nonimmigrant must continue to hold T nonimmigrant status at the time of filing the application for adjustment of status.^[13] To facilitate efficient processing, USCIS encourages derivative T nonimmigrants to file for adjustment of status concurrently with the principal T nonimmigrant. A derivative T nonimmigrant’s status is automatically extended when the derivative properly files for adjustment of status.

Once a principal T nonimmigrant is no longer a T nonimmigrant, whether due to adjustment to lawful permanent residence, change to another nonimmigrant status, or expiration of T nonimmigrant status, derivative T nonimmigrants may no longer be eligible for initial admission into the United States on a T visa.^[14]

Where the approved derivative is awaiting initial issuance of a T visa by a consulate and the principal’s nonimmigrant status is soon to expire, USCIS strongly encourages the principal to seek an extension of status based on exceptional circumstances, following the instructions to the Form I‑539, and then wait for the derivatives to be admitted to the United States as T derivatives before filing an adjustment application.

This will prevent the derivative from being ineligible for initial admission to the United States on a derivative T visa due to the expiration of the principal’s T nonimmigrant status or adjustment of status to lawful permanent residence.

Footnotes

[^ 1] See INA 214(o)(7)(A). See 8 CFR 214.11(c)(1). See 8 CFR 214.11(l).

[^ 2] See 8 CFR 214.11(c)(2).

[^ 3] See INA 214(o)(7)(C). See Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 9, Death of Petitioner or Principal Beneficiary [7 USCIS-PM A.9].

[^ 4] See INA 214(o)(7)(B)(i).

[^ 5] See INA 214(o)(7)(B)(iii).

[^ 6] USCIS adjudicates adjustment of status applications according to the T adjustment regulations at 8 CFR 245.23.

[^ 7] See 8 CFR 274a.12(c)(9).

[^ 8] The applicant should present the Form I-797 demonstrating proof of extension of T nonimmigrant status when filing an Application to Register Permanent Residence or Adjust Status (Form I-485) to adjust status to lawful permanent resident before the extension expires. See Volume 7, Adjustment of Status, Part J, 245(l) Trafficking Victim-Based Adjustment [7 USCIS-PM J].

[^ 9] See 8 CFR 274a.12(a)(16). See 8 CFR 274a.12(c)(25).

[^ 10] See 8 CFR 214.11(l)(3).

[^ 11] See 8 CFR 214.11(l)(3).

[^ 12] See 8 CFR 214.11(l)(6).

[^ 13] See 8 CFR 245.23(b)(2).

[^ 14] See 8 CFR 214.11(c)(2).

Resources

No legal authorities available at this time.

AR-11, Change of Address

G-28, Notice of Entry of Appearance as Attorney or Accredited Representative

I-912, Request for Fee Waiver

How to Use the USCIS Policy Manual Website (PDF, 2.99 MB)

Appendices

The following cases may be relevant to T nonimmigrant status eligibility issues and adjudications.

Threats of harm or serious harm:

United States v. Dann (PDF), 652 F.3d 1160, 1170 (9th Cir. 2011) (Threats should be considered from the vantage point of a reasonable person in the place of the victim and must be sufficiently serious to compel that person to remain.).

United States v. Farrell, 563 F.3d 364, 372 n.3 (8th Cir. 2009) (“Jury Instruction 16 defined ‘involuntary servitude’ as follows: ‘[A] condition of compulsory service in which the alleged victim is compelled to perform labor or services against the alleged victim's will for the benefit of another person due to the use or threat of physical restraint or physical injury, or by the use or threat of arrest, prosecution, or imprisonment. . . The use or threat of a civil lawsuit does not make the labor involuntary.’”).

United States v. Djoumessi (PDF), 538 F.3d 547 (6th Cir. 2008) (“The term ‘involuntary servitude’ necessarily means a condition of servitude in which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury, or by the use or threat of coercion through law or the legal process. This definition encompasses those cases in which the defendant holds the victim in servitude by placing the victim in fear of such physical restraint or injury or legal coercion.”) (quoting United States v. Kozminski, 487 U.S. 931, 952 (1988)).

United States v. Bradley (PDF), 390 F.3d 145, 153 (1st Cir. 2004), cert. granted, judgment vacated, 545 U.S. 1101 (2005) (The use of “physical restraint; such as, the use of chains, barbed wire, or locked doors,” is not required in order to establish the offense of forced labor.).

United States v. Warren (PDF), 772 F.2d 827, 834 (11th Cir. 1985) (“That the worker had the opportunity to escape is of no moment, if the defendant has placed him in such fear of physical harm that he is afraid to leave.”).

United States v. Udeozor (PDF), 515 F.3d 260, 265 (4th Cir. 2008) (in upholding conviction for involuntary servitude, finding that sexual abuse of the victim was one of the forms of force used to keep the minor victim in the condition of involuntary servitude).

Abuse or threatened abuse of legal process:

Clyatt v. United States (PDF), 197 U.S. 207 (1905) (victim was coerced by threat of legal sanction to work off a debt to a master).

United States v. Reynolds (PDF), 235 U.S. 133 (1914) (when breach of the labor contract is criminalized, requiring a misdemeanor offender to work for a surety who would, in turn, pay the convict’s fine to the state, the condition of peonage is created).

Pollock v. Williams (PDF), 322 U.S. 4 (1944) (“[The State] must respect the constitutional and statutory command that it may not make failure to labor in discharge of a debt any part of a crime. It may not directly or indirectly command involuntary servitude, even if it was voluntarily contracted for.”).

Bailey v. Alabama (PDF), 219 U.S. 219 (1911) (subjecting debtors to prosecution and criminal punishment for failing to perform labor after receiving an advance payment).

United States v. Kozminski (PDF), 487 U.S. 931, 945 (1988) (recognizing that threatening an incompetent with institutionalization or an immigrant with deportation could constitute the threat of legal coercion).

United States v. Kaufman (PDF), 546 F.3d 1242, 1265 (10th Cir. 2008) (recognizing that a variety of methods of coercion including threats of institutionalization were used to compel victim who suffered serious mental illness to perform farm work in the nude).

United States v. Farrell, 563 F.3d 364, 372-73 (8th Cir. 2009) (in upholding conviction for peonage, finding that employers used threats of arrest and imprisonment based on the victim’s lack of immigration status).

United States v. Djoumessi (PDF), 538 F.3d 547, 553 (6th Cir. 2008) (upholding involuntary servitude conviction when coercion involved threats of deportation to Cameroon which victim considered the greatest threat against her because of the conditions there and her desire to help her family through opportunities in the United States).

United States v. Veerapol, 312 F.3d 1128, 1130-31 (9th Cir. 2002) (upholding involuntary servitude conviction and noting that the employer maintained control over Thai restaurant workers through a variety of methods of coercion, including threats of imprisonment based on the workers’ lack of immigration status).

United States v. Calimlim, 538 F.3d 706, 713 (7th Cir. 2008) (finding that the employer’s actions of keeping victim’s passport, never admitting they were violating law, or offering to try and regularize the worker’s presence in the United States and implicit threats that she may be subject to deportation proceedings constituted “abuse of law”).

United States v. Calimlim, 538 F.3d 706, 713 (7th Cir. 2008) (rejecting employer’s arguments that threatening deportation was not an “abuse of law” because worker was here without immigration status and thus subject to deportation and finding employers’ threats were directed to an end different from those envisioned by the law and were thus an abuse of legal process).

Nunag-Tanedo v. E. Baton Rouge Par. Sch. Bd., 790 F. Supp. 2d 1134, 1144 (C.D. Cal. 2011) (citing principle that abuse of legal process occurs when objective for threats is to intimidate and coerce forced labor).

Ruiz v. Fernandez, 949 F. Supp. 2d 1055, 1077 (E.D. Wash. 2013) (rejecting defendants’ arguments that threats to report H2A Chilean sheepherders were justified because, if workers left the ranch without being assigned to another member ranch, they would be in violation of their temporary work visas. Workers testified that threats were made almost daily and were apparently made in relation to victims' general willingness to do specific work on the ranch rather any sort of expressed intent to leave the ranch without obtaining a transfer.).

Elat v. Ngoubene (PDF), 993 F. Supp. 2d 497, 526 (D. Md. 2014) (citing Camayo v. John Peroulis & Sons Sheep, Inc., Nos. (D. Colo. Sept. 24, 2012)) (Threats of deportation can constitute an abuse of the legal process if they are an abuse of the process).

Debt bondage:

United States v. Farrell, 563 F.3d 364, 372-73 (8th Cir. 2009) (The workers’ relationship with their employers was more akin to one of debt bondage rather than simple debt. Given the continually mounting expenses, at no point was the value of the workers' labor sufficient to liquidate the debt and there was, in effect, no limit to the length of the services required to satisfy the obligation or even a limit on the amount owed.).

Compensation for labor:

United States v. Bradley (PDF), 390 F.3d 145, 153 (1st Cir. 2004), cert. granted, judgment vacated, 545 U.S. 1101 (2005). (“If a person is compelled to labor against his will by any one of the means prohibited by the forced labor statute, such service is forced, even if he is paid or compensated for the work.”).

Non-traditional types of work:

United States v. Kaufman (PDF), 546 F.3d 1242, 1263 (10th Cir. 2008) (noting that involuntary servitude and forced labor statutes do not apply only to coerced “work in an economic sense” and would include coerced acts such as requiring patients to engage in compelled sexual activity, including masturbation, genital shaving, and frequent nudity, much of which was videotaped).

United States v. Marcus (PDF), 487 F.Supp.2d 289 (E.D.N.Y. 2007), vacated on other grounds, 538 F.3d 97 (2d Cir. 2008) (Enslavement can arise even if the initial participation in the labor was part of a consensual alternative sexual relationship.).

Duration of victimization:

United States v. Pipkins, 378 F.3d 1281, 1297 (11th Cir. 2004), cert. granted, judgment vacated, 544 U.S. 902 (2005), and opinion reinstated, 412 F.3d 1251 (11th Cir. 2005). (“Section 1584 requires that involuntary servitude be for ‘any term,’ which suggests that the temporal duration can be slight.”).

United States v. Djoumessi (PDF), 538 F.3d 573, 552-53 (6th Cir. 2008) (“Even assuming there were moments during [victim’s] stay when she had an opportunity to escape […] Djoumessi's argument still falls short because a rational trier of fact could conclude that [victim’s] labor was involuntary for at least some portion of her stay. And that involuntary portion would suffice to sustain the conviction.”).

United States v. Dann (PDF), 652 F.3d 1160, 1167 (9th Cir. 2001) (The charge of forced labor need not apply to the entire duration of the victim’s services or labor. It could be applied to only a portion of the time.).

Updates

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual regarding the adjudication of applications for T nonimmigrant status for victims of severe forms of trafficking in persons.

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