William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008

Reference Document: STATE 056534, 06/09

TO ALL DIPLOMATIC AND CONSULAR POSTS

1. Summary: On December 23, 2008, the President signed into law the William Wilberforce Trafficking Victims Protection Reauthorization Act (WWTVPRA) of 2008. The Act makes several changes to nonimmigrant visa classification criteria, visa processing requirements, and the grounds for inadmissibility under INA section 212(a)(2)(H). This cable outlines these changes. The Act also provides for the suspension of A-3 and G-5 issuance for applicants seeking to work for members of a particular mission or international organization if the Department determines that any officials of that mission or international organization have abused or exploited one or more such visa holders, and such treatment has been tolerated by the mission or international organization. End summary.

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Expansion of Class Entitled to T-2 Status
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2. Section 201 of the WWTVPRA amended Section 101(a)(15)(T)(ii) of the Immigration and Nationality Act to provide for T-4 and T-5 derivative status for any accompanying or following to join parent or unmarried sibling under the age of 18 of an alien who has been accorded T-1 status as a victim of trafficking if the Secretary of Homeland Security determines that the parent or sibling faces "a present danger of retaliation as a result of the victim's escape from the severe form of trafficking or cooperation with law enforcement." Note that this provision applies without regard to the age of the T-1 principal, and is in addition to existing authority in INA 101(a)(15)(T)(ii)(I) for T-4 and T-5 status for accompanying or following to join parents and unmarried siblings under age 18 of a principal alien who was under the age of 21 as of the date of the principal's application for T-1 status. If the principal alien was under the age of 21 at the time of his or her application for T-1 status, the parents and any unmarried sibling under 18 who are accompanying or following to join the principal would be entitled to T-4 and T-5 classification without a DHS determination that they face a present danger of retaliation. [redacted]

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Information for B-1 Domestic Employee, A-3, G-5, H, J, and NATO-7 visa applicants about Legal Rights and Protections
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3. Section 202 of the WWTVPRA requires the Secretary of State, in consultation with the Secretary of Homeland Security, the Attorney General and the Secretary of Labor, to develop an informational pamphlet on the legal rights and resources available to "aliens applying for employment- or education-based nonimmigrant visas." Section 202(f)(1) lists within the definition of "employment- or education-based nonimmigrant visa," these NIV classifications: A-3, G-5, H, and J, as well as "any nonimmigrant visa issued to a personal or domestic servant who is accompanying or following to join an employer." The latter group would consist of B- 1 personal or domestic servant and NATO-7 NIV cases.

4. The legislation provides that the Secretary of State must distribute and make available the pamphlet no later than June 22, 2009. The pamphlet must include information regarding items such as the NIV application process and employment portability; the legal rights of aliens holding NIVs in the classifications discussed in paragraph (3) under Federal immigration, labor and employment law; the illegality of slavery, peonage, trafficking in persons, sexual assault, extortion, blackmail, and worker exploitation in the United States; the legal rights of immigrant victims of trafficking in persons and worker exploitation -- including the right of access to immigrant and labor rights groups; the right to seek redress in U.S. courts; the right to report abuse without retaliation; the right of the nonimmigrant not to relinquish possession of his or her passport to the employer; the requirement of an employment contract between the employer and the nonimmigrant; and an explanation of the rights and protections included in the contract -- and NGOs that provide services to victims of trafficking and worker exploitation.

5. Once the pamphlet has been finalized and translated into languages spoken by the greatest concentration of applicants in the affected NIV categories, it will be posted on travel.state.gov. The legislation also requires that the pamphlet must be posted on the website of each visa processing post as well as DHS, DOJ, and DOL. Once available, posts should keep copies of the posted pamphlet on hand to distribute as necessary (see paragraph 6). Employers and, as applicable, exchange visitor program sponsors will be requested to provide a copy of the pamphlet to each alien who will be applying for a visa in the A-3, B-1 personal or domestic employee, G-5, H, J, or NATO-7 classifications.

6. During the visa interview of each such applicant, the consular officer must confirm that the applicant has received, read, and understood the contents of the pamphlet. If the applicant has not received, read, or understood the contents, the consular officer must distribute a copy of the pamphlet and orally disclose to the applicant, in a language the applicant understands, the information described below regarding legal rights and victim services, and also offer to answer any questions the applicant may have on the information covered in the pamphlet. Such an oral disclosure should include at a minimum:

--the legal rights of employment-based nonimmigrants under Federal immigration, labor, and employment laws;

--the illegality of slavery, peonage, trafficking in persons, sexual assault, extortion, blackmail, and worker exploitation in the United States;

--the legal rights of immigrant victims of trafficking in persons, worker exploitation, and other related crimes, including: the right of access to immigration and labor rights groups; the right to seek redress in United States courts; and the right to report abuse without retaliation; and

--the availability of services for victims of human trafficking and worker exploitation in the U.S., including victim services complaint hotlines.

A consular officer obviously cannot provide such an oral disclosure until the Department makes the pamphlet available to posts.

7. Section 202(d(2) of the WWTVPRA provides for the pamphlet to be made available also to any government agency, nongovernmental advocacy organization, or foreign labor broker doing business in the United States. Upon posting of the pamphlet on travel.state.gov, the Department, by public notice in the Federal Register, will formally inform other agencies, NGOs and foreign labor brokers in the United States that the information has been posted and may be copied and provided to other parties. Posts should inform the foreign ministry and private agencies, recruiters, etc., that assist applicants seeking the relevant visas of the availability of this pamphlet and ask them to instruct the applicants to read the pamphlet prior to their visa interview appointment.

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Requirements Specific to Employees of Official Personnel from Foreign Governments and International Organizations (A-3 and G-5)
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8. In Section 203 of the legislation, Congress has incorporated State's requirement for an employment contract between a domestic or personal employee or servant applying for an A-3 or G-5 visa and the employer. This section also provides that the contract must include the employer's agreement "to abide by all Federal, State, and local laws in the United States," and not to withhold the passport, the employment contract, or other personal property of the employee. The contract must also include "information on the frequency and form of payment, work duties, weekly work hours, holidays, sick days, and vacation days."

9. Section 203 of the WWTVPRA mandates a visa interview, outside the presence of the employer or recruitment agent, during which the officer must review the terms of the contract and the pamphlet, described above, with the applicant. Notwithstanding the waiver criteria in INA 222(h), no waiver of the interview requirement is available for an A-3 or G-5 applicant, even if the applicant was previously issued a visa in the same classification based on employment by the same employer.

10. Section 203 further provides for the suspension ofA-3 and G-5 issuance to applicants seeking to work for officials of a particular mission or international organization if the Department determines that there is credible evidence that 1 or more employees of that mission or international organization has abused or exploited 1 or more A-3 or G-5 visa holders and the mission or international organization tolerated such action. [redacted]

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Training of Consular Officers
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11. Section 203(b)(3) provides that the Secretary is to provide "appropriate training to consular officers on the fair labor standards described in the pamphlet... trafficking in persons, and the provisions of [section 203]." CA, in consultation with G/TIP and NGOs with expertise on the legal rights of workers and victims of severe forms of trafficking in persons, will establish an online program that provides such training to consular officers. Once the Department has issued new FAM notes providing guidance regarding WWTVPRA provisions and has posted the information pamphlet on travel.state.gov, posts will be instructed to hold a consular training session consisting of a review of information provided in the pamphlet, FAM notes, and this cable as interim training pending development of the online training program.

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Grounds for Inadmissibility under INA 212(a)(2)(H)(i)
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12. Section 222(f) of the WWTVPRA amends one of the basis for inadmissibility under INA 212(a)(2)(H)(i). As a result of the amendment, an alien "who commits or conspires to commit human trafficking offenses in the United States or outside the United States" is inadmissible. This replaces part of the previous version, which had made inadmissible any foreign person identified by the President as a significant trafficker in persons in a report to Congress pursuant to section 111(b) of the Trafficking Victims Protection Act of 2000. Unchanged in section 212(a)(2)(H)(i) is the provision that also renders inadmissible an alien who the consular officer knows or has reason to believe is a "knowing aider, abettor, assister, conspirator, or colluder with such a trafficker in severe forms of trafficking in persons."

13. For purposes of INA 212(a)(2)(H), a human trafficking offense equates to a "severe form of trafficking in persons," which section 103 of the TVPA defines as: 1) sex trafficking-inducing a person to engage in a commercial sex act through the use of force, fraud, or coercion, or inducing a person under the age of 18 to engage in a commercial sex act, regardless of whether or not force, fraud, or coercion was used; or 2) the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purposes of subjection to involuntary servitude, peonage, debt bondage, or slavery. When a consular officer suspects that a visa applicant has committed a human trafficking offense and is inadmissible under INA 212(a)(2)(H), the officer must request an advisory opinion from CA/VO/L/A.

14. The Foreign Affairs Manual will be amended consistent with this legislation.

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