Chapter 2 - Eligibility Requirements

Adjustment of status is available both to victims of trafficking who received T nonimmigrant status as a principal applicant and their eligible family members who received derivative T nonimmigrant status; however, the eligibility requirements differ. This chapter discusses the eligibility requirements for principal applicants and their derivative family members.

There are some eligibility requirements that apply to both principal applicants and derivative applicants. Both principal and derivative applicants must establish that they:

• Were lawfully admitted to the United States as a T nonimmigrant and continue to hold such status;^[1] and
• Are admissible to the United States or have been granted a waiver by USCIS of any applicable ground of inadmissibility at the time of adjudication of the adjustment application for any grounds not already waived in connection with the underlying application for T nonimmigrant status.^[2]

A. Principal Applicants

1. Overview of Eligibility Requirements

To be eligible for adjustment of status based on T nonimmigrant status, a principal T-1 nonimmigrant^[3] must meet all of the following eligibility requirements^[4] at the time of filing their Application to Register Permanent Residence or Adjust Status (Form I-485) through final adjudication of the adjustment application.^[5] The principal T-1 nonimmigrant must demonstrate that they:

• Were lawfully admitted to the United States as a T-1 nonimmigrant and continue to hold such status;^[6]
• Have been continuously physically present^[7] in the United States for either:
  • At least 3 years since the date of lawful admission as a T-1 nonimmigrant and through adjudication of the adjustment application;^[8] or
  • The duration of the investigation or prosecution of acts of trafficking in cases where the Attorney General has determined that the investigation or prosecution is complete, if less than 3 years;^[9]
• Have been a person of good moral character since first being lawfully admitted as a T-1 nonimmigrant through the time that USCIS completes the adjudication of the adjustment application;^[10]
• Meet one of the following:
  • Have, since first being lawfully admitted as a T-1 nonimmigrant and through the conclusion of adjudication of the adjustment application, complied with any reasonable request for assistance in the detection, investigation, or prosecution of acts of trafficking;^[11]
  • Would suffer extreme hardship involving unusual and severe harm upon removal from the United States;^[12]
  • Were under 18 years of age at the time at least one of the acts of trafficking occurred;^[13] or
  • Established they were unable to cooperate with a reasonable request for assistance at the time they were granted T-1 nonimmigrant status, due to physical or psychological trauma;^[14]
• Are admissible to the United States or have been granted a waiver by USCIS of any applicable ground of inadmissibility at the time of adjudication of the adjustment application;^[15] and
• In addition to the above eligibility requirements, applicants for adjustment of status based on T nonimmigrant status must demonstrate that they merit a favorable exercise of discretion.^[16]

2. Continuous Physical Presence

To maintain continuous physical presence in the United States for the required period,^[17] a T-1 nonimmigrant must not depart from the United States for any single period in excess of 90 days or for any periods exceeding 180 days in the aggregate.^[18] However, a single departure for any period more than 90 days or multiple departures for periods exceeding 180 days in the aggregate do not break continuous physical presence if the T-1 nonimmigrant can demonstrate one of the following:

• The absence was necessary to assist in the investigation or prosecution of the acts of trafficking;^[19] or
• An official involved in the investigation or prosecution of the acts of trafficking certifies that the absence was otherwise justified.^[20]

If a T-1 nonimmigrant breaks the period of continuous physical presence because of a single departure from the United States for any period of more than 90 days or multiple departures for more than 180 days in the aggregate and then re-enters the United States after receiving advance parole under INA 212(d)(5), the T-1 nonimmigrant may again begin to accrue physical presence in order to meet the 3-year physical presence requirement.^[21]

Additionally, a T-1 nonimmigrant can accrue continuous physical presence beginning from any admission in T nonimmigrant status, including admissions made after departures that broke a prior period of continuous presence. The physical presence time period starts over upon the applicant’s return, and they must accrue 3 years from the date of their return to the United States.

3. Good Moral Character

T nonimmigrant applicants seeking to adjust status must establish that they have been a person of good moral character (GMC) during the continuous period of at least 3 years since the date of T admission or during the period of investigation or prosecution of the acts of trafficking, whichever period is less.^[22] In either case, GMC must be maintained until USCIS completes the adjudication of the application for adjustment of status.^[23]

Therefore, in evaluating GMC, USCIS only considers an applicant’s conduct since first being lawfully admitted as a T-1 nonimmigrant through the time that USCIS completes the adjudication of the application for adjustment of status. USCIS does not consider an applicant’s conduct before the applicant was lawfully admitted as a T-1 nonimmigrant as part of the GMC analysis.

In the context of a T nonimmigrant applying for adjustment of status, USCIS evaluates claims of GMC on a case-by-case basis, taking into account persons who are unable to establish GMC by the law and the standards of the community.^[24] By law, certain types of criminal conduct automatically prevent applicants from establishing GMC.^[25] An officer may also find, depending on the facts of the case, that an applicant for adjustment of status lacks GMC for other types of criminal conduct or unlawful acts not included in the statute.^[26]​

USCIS may waive the disqualification of an applicant for adjustment of status based on a lack of GMC, including for acts or offenses described in the law, if the disqualification was caused by, or incident to, the acts of trafficking that formed the basis of the underlying application for T nonimmigrant status.^[27] Officers use a victim-centered approach in making this determination.

4. Reasonable Requests for Assistance

An applicant must generally establish that they complied with any reasonable request for assistance in the investigation or prosecution of acts of trafficking.^[28] A “request for assistance” is defined as a request made by a law enforcement agency (LEA) to a victim to assist in the detection, investigation, or prosecution of the acts of trafficking in persons or the investigation of crime where acts of trafficking are at least one central reason for the commission of that crime.^[29]

Applicants are not required to submit a document issued by the Attorney General or their designee certifying that the applicant has complied with any reasonable requests for assistance.^[30] USCIS examines relevant evidence in the record to determine whether the applicant met the statutory requirement to comply with any reasonable request for assistance.

USCIS has sole jurisdiction over the entire T nonimmigrant adjustment of status process, including the determination of whether an applicant complied with any reasonable requests for assistance in the investigation or prosecution. USCIS consults the Attorney General as it deems appropriate.^[31]

In determining whether an LEA request for assistance is reasonable, USCIS examines the totality of the circumstances.^[32]

Alternatives to Complying with Reasonable Requests for Assistance

There are three alternatives to the requirement that the applicant comply with any reasonable request for assistance from an LEA in the investigation or prosecution of acts of trafficking. Applicants who are unable to establish that they complied with any reasonable request for assistance only need to establish that they meet one of these alternatives.

Extreme Hardship

T-1 nonimmigrants who cannot demonstrate continued compliance with reasonable requests for assistance may instead establish that they would suffer extreme hardship involving unusual and severe harm upon removal from the United States.^[33] Officers make hardship determinations on a case-by-case basis using the same factors and standard for extreme hardship that apply to the initial Application for T Nonimmigrant Status (Form I-914).^[34]

Where the basis for the hardship claim represents a continuation of the hardship claimed in the underlying application for T nonimmigrant status, the applicant does not need to re-document the entire claim, but may submit evidence to establish that the previously established hardship is ongoing. However, in reaching a decision regarding hardship for adjustment of status, USCIS is not bound by its previous hardship determination made at the adjudication of the underlying application for T nonimmigrant status.

Previously Established Age Exemption

If the applicant was younger than 18 years of age at the time of victimization qualifying the applicant for T nonimmigrant status, compliance with reasonable requests for assistance from law enforcement agencies is not required for purposes of establishing eligibility for adjustment of status.^[35]

A T nonimmigrant who qualifies for an exemption from the cooperation requirement due to age does not need to also demonstrate extreme hardship.^[36]

Previously Established Trauma Exception

If the applicant established that they were unable to cooperate with reasonable requests for assistance from law enforcement based on physical or psychological trauma at the time the application for T nonimmigrant status was approved, compliance with reasonable requests for assistance from law enforcement agencies is not required for purposes of establishing eligibility for adjustment of status.

A T nonimmigrant who qualified for an exception from the cooperation requirement at the time of adjudication of the application for T nonimmigrant status due to trauma is also not required to demonstrate extreme hardship.^[37]

B. Derivative Family Members

1. Overview of Eligibility Requirements

A derivative family member of a T-1 nonimmigrant is eligible to apply for adjustment of status to that of a lawful permanent resident, provided:

• The T-1 principal nonimmigrant meets the eligibility requirements and has applied for adjustment of status;^[38]
• The derivative family member was lawfully admitted to the United States in T-2, T-3, T-4, T-5, or T-6 nonimmigrant status as the derivative beneficiary of a T-1 nonimmigrant, and continues to hold such status at the time of their adjustment application;^[39] and
• The derivative family member is admissible to the United States or USCIS has granted a waiver of any applicable ground of inadmissibility at the time of adjudication of the adjustment application.^[40]

The derivative family member does not have to satisfy the other eligibility requirements applicable to T-1 principal applicants, including the 3-year continuous physical presence requirement and good moral character requirement.

2. Effect of Adjustment of Principal T-1 Nonimmigrant’s Status

A derivative T nonimmigrant is eligible for adjustment of status only if the principal T-1 nonimmigrant is also eligible. USCIS cannot approve a derivative’s adjustment application if the principal’s application for adjustment has not been approved.^[41]

A derivative does not lose their derivative T nonimmigrant status when the principal adjusts status and becomes a lawful permanent resident, so long as the derivative has been initially admitted to the United States as a T nonimmigrant before the principal T-1 nonimmigrant adjusts status, and continues to hold T nonimmigrant status at the time of the principal’s adjustment.^[42]

Therefore, a T derivative remains eligible for adjustment of status even if the principal T-1 nonimmigrant has already adjusted status as a T nonimmigrant under INA 245(l), as long as the derivative has been admitted to the United States as a T nonimmigrant before the principal’s adjustment of status. However, a derivative is not eligible for adjustment of status under INA 245(l) as a derivative T nonimmigrant if the T-1 nonimmigrant adjusted status under any other basis, such as INA 245(a).

If, under a previous policy,^[43] USCIS denied a derivative T nonimmigrant’s application to adjust status solely because the principal had already adjusted status under INA 245(l), the derivative should file a motion to reopen under 8 CFR 103.5 using a Notice of Appeal or Motion (Form I-290B) in accordance with the instructions, include a copy of the previous denial, and ask that USCIS excuse the late filing.

3. Effect of Death of Principal T-1 Nonimmigrant

If a principal T-1 nonimmigrant dies, a surviving derivative family member admitted to the United States in T nonimmigrant status may apply for adjustment of status, notwithstanding the death of the principal, if certain requirements are met.^[44]

The applicant must still establish eligibility for adjustment.​ Further, USCIS may deny an application that is otherwise approvable despite the principal’s death if USCIS finds, as a matter of discretion, that approval would not be in the public interest.^[45]

Footnotes

[^ 1] See INA 245(l)(1). See 8 CFR 245.23(a)(2) and 8 CFR 245.23(a)(3). For more information regarding duration and extensions of T nonimmigrant status, see Volume 3, Humanitarian Protection and Parole, Part B, Victims of Trafficking, Chapter 10, Duration and Extensions of Status [3 USCIS-PM B.10]. If a T-1 principal or derivative family member fails to apply for adjustment of status prior to expiration of the T nonimmigrant status validity period or fails to obtain an extension of T nonimmigrant status, the T nonimmigrant status is terminated. See 8 CFR 214.203(c).

[^ 2] See INA 245(l)(2). See 8 CFR 245.23(a)(5) and 8 CFR 245.23(b)(4). See Volume 9, Waivers and Other Forms of Relief, Part O, Victims of Trafficking, Chapter 5, Waivers for T Nonimmigrants Applying for Adjustment of Status [9 USCIS-PM O.5] for guidance on waivers of inadmissibility.

[^ 3] This part refers to trafficking victims with principal T nonimmigrant status and derivative family members with T nonimmigrant status in several ways. Principal nonimmigrants may be referred to as “T-1 principal nonimmigrants,” “T-1 nonimmigrants,” or “principals.” Derivative nonimmigrants may be referred to as “T-2, T-3, T-4, T-5, or T-6 derivative nonimmigrants” or as “derivatives.” See Volume 3, Humanitarian Protection and Parole, Part B, Victims of Trafficking, Chapter 4, Family Members [3 USCIS-PM B.4] for a description of codes of admission for derivatives.

[^ 4] See INA 245(l)(1).

[^ 5] See 8 CFR 103.2(b)(1).

[^ 6] See INA 245(l)(1). See 8 CFR 245.23(a)(2) and 8 CFR 245.23(a)(3). For more information regarding duration and extensions of T nonimmigrant status, see Volume 3, Humanitarian Protection and Parole, Part B, Victims of Trafficking, Chapter 10, Duration and Extensions of Status [3 USCIS-PM B.10]. If a T-1 principal or derivative family member fails to apply for adjustment of status prior to expiration of the T nonimmigrant status validity period or fails to obtain an extension of T nonimmigrant status, the T nonimmigrant status is terminated. See 8 CFR 214.203(c).

[^ 7] See INA 245(l)(1)(A). See 8 CFR 245.23(a)(4). This requirement must be met at the time of filing through the time of adjudication.

[^ 8] See INA 245(l)(1)(A). See 8 CFR 245.23(a)(4). For purposes of establishing physical presence for a continuous period of at least 3 years as of the time of filing, the statutes and regulations permit T nonimmigrants to restart the clock after a break in continuous physical presence after their first admission as a T nonimmigrant (including, but not limited to, restarting after a subsequent admission as a T nonimmigrant, or restarting after returning with advance parole after a break in continuous physical presence).

[^ 9] See INA 245(l)(1)(A). See 8 CFR 245.23(a)(4). The evidence must clearly indicate that an investigation or prosecution occurred, and that such investigation or prosecution is now complete.

[^ 10] See INA 245(l)(1)(B) and INA 245(l)(6). See 8 CFR 245.23(a)(6).

[^ 11] See INA 245(l)(1)(C)(i). See 8 CFR 245.23(a)(7)(i).

[^ 12] See INA 245(l)(1)(C)(ii). See 8 CFR 245.23(a)(7)(ii).

[^ 13] See INA 245(l)(1)(C)(iii). See 8 CFR 245.23(a)(7)(iii).

[^ 14] See 8 CFR 245.23(a)(7)(iv).

[^ 15] See INA 245(l)(2). See 8 CFR 245.23(a)(5).

[^ 16] See INA 245(l)(1). See 8 CFR 245.23(e)(3).

[^ 17] This continuous physical presence requirement must be met at the time of filing and continue through the time of adjudication of Form I-485.

[^ 18] See INA 245(l)(3). See 8 CFR 245.23(a)(4)(i).

[^ 19] See INA 245(l)(3)(A).

[^ 20] See INA 245(l)(3)(B).

[^ 21] See 8 CFR 245.23(a)(4).

[^ 22] See INA 245(l)(1)(B).

[^ 23] See 8 CFR 245.23(a)(6).

[^ 24] See 8 CFR 245.23(g).

[^ 25] See INA 101(f). For a discussion of permanent and conditional bars to establishing good moral character and assessing criminal conduct, see Volume 12, Citizenship and Naturalization, Part F, Good Moral Character, Chapter 2, Adjudicative Factors [12 USCIS-PM F.2]; Chapter 4, Permanent Bars to Good Moral Character [12 USCIS-PM F.4]; and Chapter 5, Conditional Bars for Acts in Statutory Period [12 USCIS-PM F.5].

[^ 26] See INA 101(f) (“The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character.”).

[^ 27] See INA 245(l)(6). An applicant does not need to file a separate form for USCIS to waive a lack of good moral character. Where the record contains sufficient evidence to demonstrate that the disqualifying acts were caused by or incident to a trafficking, the officer may waive the disqualification. If there is insufficient evidence in the record for an officer to determine whether the disqualifying acts were caused by or incident to a trafficking, or if the record does not establish that favorable discretion is appropriate, officers may issue a Request for Evidence or may deny the application, where appropriate.

[^ 28] See 8 CFR 245.23(a)(7)(i).

[^ 29] See 8 CFR 214.201.

[^ 30] See 8 CFR 245.23(d) and 8 CFR 245.23(f). See 89 FR 34864, 34867 (PDF) (Apr. 30, 2024).

[^ 31] See INA 245(l)(1)(c).

[^ 32] See 8 CFR 214.208(c). For a discussion of the factors and the comparably-situated crime victim standard that USCIS uses, see Volume 3, Humanitarian Protection and Parole, Part B, Victims of Trafficking, Chapter 2, Eligibility Requirements, Section D, Requests for Law Enforcement Assistance [3 USCIS-PM B.2(D)].

[^ 33] See 8 CFR 245.23(a)(7)(ii).

[^ 34] See 8 CFR 214.209. See Volume 3, Humanitarian Protection and Parole, Part B, Victims of Trafficking, Chapter 2, Eligibility Requirements, Section E, Extreme Hardship [3 USCIS-PM B.2(E)] for guidance on applying this standard.

[^ 35] See INA 245(l)(1)(C)(iii).

[^ 36] See 8 CFR 245.23(a)(7)(iii).

[^ 37] See 8 CFR 245.23(a)(7)(iv).

[^ 38] See 8 CFR 245.23(b)(1).

[^ 39] A derivative child or sibling does not lose their ability to adjust status under 8 CFR 245.23 if they marry after their grant of T nonimmigrant status but before adjusting to lawful permanent residence.

[^ 40] See INA 245(l). See 8 CFR 245.23(b)(4).

[^ 41] See INA 245(l)(1).

[^ 42] See 8 CFR 245.23(b)(1), 8 CFR 245.23(b)(2), and 8 CFR 245.23(b)(5).

[^ 43] Before October 4, 2016, USCIS policy did not permit a derivative T nonimmigrant to adjust status after the principal had adjusted status. See Extension of Status for T and U Nonimmigrants; Revisions to Adjudicator’s Field Manual (AFM) Chapter 39.1(g)(3) and Chapter 39.2(g)(3) (AFM Update AD11-28), PM-602-0032.1, issued April 19, 2011.

[^ 44] See INA 204(l). For additional information about these requirements, see Part A, Adjustment of Status Policies and Procedures, Chapter 9, Death of Petitioner or Principal Beneficiary [7 USCIS-PM A.9].

[^ 45] See INA 204(l)(1).