Nonimmigrant Visas for Victims of Trafficking
The United Nations defines “trafficking in persons” as the “recruitment, transfer, harboring or receipt of persons, by means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.”
Trafficking differs from human smuggling in that trafficking victims have never consented to their transport to another country, or if they initially consented to such transfer, their consent has been negated by the coercive, deceptive or abusive actions of the traffickers. Trafficking victims are unaware that they will be forced into prostitution or exploited as forced labor. The use of fraud, force or coercion therefore distinguishes trafficking from human smuggling. Victims of trafficking are often lured by promises of marriage, well-paying jobs or educational opportunities, but the reality of what awaits them upon arrival in their new country is often compared to modern slavery.
Statistics on trafficking are staggering and appalling. The U.S. government estimates between 600,000 and 800,000 persons are trafficked across international borders annually; approximately 70% of whom are female, and 50% are children. An estimated 14,500 to 17,500 persons are trafficked into the U.S. annually. Unlike smuggling, trafficking can occur internally within the borders of a country. If a victim is transported to an exploitative situation within a single country, the definition of trafficking may still apply; the victim does not have to be transported across a border. Estimates of the number of intra-country trafficking victims range from 2 to 4 million victims.
The result of trafficking has often been described as modern “slavery.” Victims are often forced to live in squalid conditions. Travel documents, such as passports or identification papers are often confiscated to prevent victims from fleeing. Victims are often told they owe their traffickers large sums of money for the cost of their transport and support. Victims who resist are often beaten, sexually abused, held against their will or threatened. Many victims become infected with HIV/AIDS or other communicable diseases.
Trafficking victims are often forced to serve as:
- Prostitutes. Victims are forced into prostitution or sold outright to repay the debt owed to their trafficker. Some victims are forced to serve in the “sex tourism” industry, where victims of trafficking are forced to work in brothels frequented by tourists.
- Exploited Labor and Involuntary Servitude. Victims, including young children, are forced to work for very low wages. Often the victim’s wages are so low they are unable to repay the debt owed to the trafficker for their transport and support. Involuntary servitude involves forcing the victim to work under fear of physical restraint or serious harm.
- Child Soldiers. Thousands of children under the age of 18 are forced into armies or other fighting units in many countries. Children are forced to serve as unpaid servants to officers or even fight in combat. Child soldiers are inadequately trained and equipped and suffer a much higher mortality rate than adult soldiers. Such children are often sent ahead into mine fields or serve as human shields to protect the adult troops. Both male and female children are forced to serve as child soldiers, with female soldiers often subjected to sexual abuse by adult soldiers.
In response to growing concerns over human trafficking, Congress passed the “Victims of Trafficking and Violence Protection Act” (VTVPA) in 2000. The VTVPA was amended in 2003. The VTVPA:
- Creates new laws criminalizing trafficking, including slavery, involuntary servitude, peonage (the practice of forcing a victim to work to repay the debt owed to a trafficker) and forced labor.
- Allows for the prosecution of situations where victims are forced to work under the belief that they will be subject to serious harm and/or where victims are compelled to remain by confiscation of their travel documents.
- Increases prison terms for slavery and imposes life imprisonment for violations that entail death, kidnapping, or sexual abuse of the victim.
- Requires courts to order restitution and forfeiture of assets from convicted traffickers, including helping the victims to return to their home country, if the victim desires to return.
- Enables victims to seek witness protection for testifying against their traffickers and offers other types of victim protection, including the institution of two visa categories, “T” and “U.” A “T” visa is available to victims of severe forms of trafficking who have complied with any reasonable requests for assistance in the investigation or prosecution of acts of trafficking. A “U” visa is available to victims who have suffered substantial physical or mental abuse as a result of being a victim of a crime defined in the VTVPA, including trafficking.
- Authorizes civil action by the victims against traffickers. Such civil actions are stayed (not allowed to proceed) pending the outcome of a criminal action against the traffickers.
- Obligates the State Department to annually prepare and publish a report on the status of trafficking in persons throughout the world, highlighting efforts made by individual countries to combat the problem. Countries are ranked into “tiers” according to their efforts, and the U.S. may withhold certain forms of international assistance for failure to take action to combat trafficking.
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