Click here for a letter of support for William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (S 3061).
Top Priorities
1. De-link benefits and services for victims in the US from requirement to assist with DOJ investigations/prosecutions.
Currently, in order for foreign national victims to qualify for benefits and services they have to be certified by the Secretary of Health and Human Services. The certification process requires that a victim: (a) is willing to assist law enforcement in the investigation and prosecution of their traffickers (b) has made a bona fide application for a t-visa and (c) is a person whose continued presence in the United States the Attorney General is ensuring in order to effectuate prosecution of traffickers in persons. While most victims of trafficking will readily comply with law enforcement requests, occasionally victims are unable to cooperate due to physical or emotional limitations or due to fear for their own safety or the safety of their family members.
2. Change the requirements of qualifying for a T-Visa so that cooperation with law enforcement remains a factor to be considered, but not a mandatory requirement for getting a T-Visa. Extend the derivative T-Visa to additional family members of trafficking victims who are collaborating with law enforcement.
A. The U.S. government estimates that up to 17,500 persons are trafficked into the United States each year; yet only a tiny fraction of those have received T-Visas. The current requirements that a person not only be a victim of a severe form of trafficking but also collaborate with law enforcement, be present in the United States as a result of being trafficked, and show that he or she would suffer severe harm upon removal, are too onerous. Though intended to encourage victims to cooperate with investigations and prosecutions, the law enforcement cooperation requirement has acted as a bar to legal status to those who are too fearful to pursue cases. With uncertain legal status, they may never become sufficiently stable to feel secure collaborating with law enforcement. Liberalizing these requirements would significantly shorten the amount of time necessary to prepare a T-visa application. Many practitioners estimate it takes up to 9 months to pull together proof of all of the elements of a T-visa application. Shortening the process would mean survivors could more quickly attain legal status, become stable members of society and thereby be mentally prepared to collaborate with law enforcement..
B. Under the current T-Visa system, victims defined as minors can bring their parents and siblings to the U.S. on derivate T-Visas, but adult victims can only bring a spouse or children. The requirement for adult victims should be changed to enable them to bring parents and siblings in addition to their spouse and children for three reasons: 1) these family members often feel threatened in their home country though such threats are often hard to prove; 2) it will assist the victim’s recovery to know that close family members are safe; and 3) it will assist the victim to have the moral support of close family in the U.S. if the victim is a witness in a criminal or civil case against a trafficker.
3. TIP Report Enhancements to address lack of legal identity
Section 7106(b) lists the "minimum standards" criteria. Subparagraph (3) addresses "whether the government of the country has adopted measures to prevent severe forms of trafficking in persons, such as measures to inform and educate the public, including potential victims, about the causes and consequences of severe forms of trafficking in persons.”
The proposed amendment would require the Department of State to evaluate steps a country is taking to address lack of identity, a major risk factor for trafficking.
4. DOD contracting and subcontracting requirements for firms suspected of trafficking in persons and labor rights abuses
Mandate Defense Contract Management Agency (DCMA) to conduct an audit of all contractors and subcontractors in those countries where there are credible reports of trafficking in persons and/or serious violations of the internationally recognized right to freedom from coerced labor and to acceptable conditions of work by the US contractors and sub-contractors, including in Afghanistan, Iraq, and the Balkans. Maintenance or extension of contracts with such contractors/subcontractors shall require certification by the DCMA that the contractors/subcontractors are not engaged in labor or sex trafficking and afford minimal standards of internationally recognized worker rights with respect to minimum wage, hours of work, and occupational safety and health. Such certification shall be provided to the Armed Services Committees of Congress on an annual basis, the first to be provided within 90 days of enactment.
5. Provisions for U.S. citizen victims to ensure that they are identified and provided specialized services. (While the other 20 amendments share the unanimous support of the Action Group, this amendment is supported by a majority of Action Group members)
A. Ensure that DOJ funding to provide services to victims of trafficking is available to both foreign national and U.S. citizen victims, and eliminate the current restriction placed on DOJ trafficking grantees that they can only serve foreign victims with their grant.
B. Ensure that HHS funding to provide services to victims of trafficking is available for services to both foreign national and U.S. citizen victims, and revise the current system that only provides service funding to foreign national victims.
C. Add victims of severe forms of trafficking to the list of “under-served” populations listed under VAWA so that VAWA grantees, mainly DV and sexual assault organizations, are then eligible to serve victims of trafficking with VAWA funds.
D. Reauthorize $15 million that was authorized in TVPRA 05 (Section 202-Establishment of $10 million Grant Program to Develop, Expand and Strengthen Assistance Programs for Certain Person Subject to Trafficking) and (Section 203-$5 million for Protection of Juvenile Victims of Trafficking in Person) but never appropriated for HHS to serve U.S. citizens and permanent residents. However, we would like to make this funding available to both foreign nationals and U.S. citizens, instead of only U.S. citizens and permanent residents.
6. Extend the same US foreign aid prohibition as Tier III countries to those countries that have been on the Tier II Watch List for more than two years.
The Tier II Watch List was created by Congress to bring special attention and pressure on countries that failed to meet Tier II standards. Several major countries with significant trafficking and slavery problems have remained on Tier II Watch list for four consecutive years. The new director of the State Department Office to Monitor and Combat Trafficking, Ambassador Mark Lagon, has said that the Tier II Watch list should not be a “parking lot” for countries habitually failing to reach minimum standards. By linking Tier III sanctions to countries that have remained on the Tier II Watch List for more than two years, this amendment would enhance the resources of US diplomats for the encouragement of improvements in slavery-burdened countries.
7. Deadline for issuance of T-Visa Regulations
Many victims have had their T-visas for three to four years. The delay in the issuance of adjustment regulations has deprived these individuals of many rights a T visa holder would have already had as a legal permanent resident, including freedom of travel in and out of the US. Additionally, the delay in regulations may add unnecessary waiting time for the T visa holder's path to citizenship.
This provision requires the Department of Homeland Security to issue regulations regarding T-Visas within 120 days of the enactment of this Act, and deals with the failure of the Department to issue the regulations as mandated by the 2005 TVPRA. (Appropriate section of TVPRA to be amended accordingly.)
8. An exception to the good moral character clause for victims forced to break the law by their traffickers
Many victims are forced to break the law by their traffickers and as such they should not be ineligible for Permanent Legal Status because of those forced unlawful acts. This amendment clarifies that the “good moral character” clause will not be held against them for those crimes that they were forced to engage in as a trafficked victim.
9. Reducing law enforcement burden in supporting survivors’ “continued presence” immigration status
The purpose of continued presence is to give relief and immediate access to services to victims so that they could become better witnesses for the prosecution. However, hundred of trafficking victims who are complying with reasonable law enforcement requests are waiting months and sometimes years for regularized immigration status or access to benefits through the T visa process because federal law enforcement has not issued a request for CP.
Currently, law enforcement officials sometimes hesitate to support “continued presence,” because they are wary of affirming that a person is a victim before an investigation is complete. Because CP is a gateway to services and certification, it should be offered to potential victims and family members. This amendment would encourage law enforcement to grant CP more liberally.
10. Provide emergency assistance to child victims of trafficking and give the Department of Health and Human Services (“HHS”) the exclusive authority to make prompt determinations of eligibility for this assistance:
Victims of child trafficking should receive interim benefits to meet their emergency needs, and the Department of Health and Human Services (“HHS”) should be given the exclusive jurisdiction over making determinations of assistance eligibility for children. Giving the Department of Health and Human Services (HHS) this exclusive responsibility for making quick determinations of whether children are eligible for interim benefits will allow children the greatest access to the emergency needs they require. The types of emergency needs that children escaping a trafficking situation often require include medical care, mental health services, relocation, and reunification with other family members. Children should be given access to these emergency needs by a service provider as soon as possible, instead of being forced to wait for these benefits until after they have cooperated with law enforcement. Many child victims of trafficking experience psychological and emotional trauma making it difficult for them to interact with law enforcement. This amendment will allow these children to have prompt access to the benefits to which they are entitled under the TVPA.
11. Guardians or Child Advocates for all unaccompanied minor victims of trafficking
All minor trafficking victims should immediately be appointed guardians ad litem to advocate for their best interests.
A guardian ad litem will help ensure that decisions made on behalf of child victims are in their best interest, child victims are able to access the benefits and programs to which they are entitled, and child victims’ rights are protected. In addition, a guardian ad litem can assist a child victim obtain certification from the United States Department of Health and Human Services (HHS) that the child is a victim of a severe form of trafficking. A guardian ad litem can also assist a child victim in determining whether the child will cooperate with law enforcement agencies and, if so, help ensure that the child’s rights as a victim-witness are protected. Finally, a guardian ad litem can help ensure that social service providers, law enforcement agents, and legal service providers make decisions regarding the child with the child’s best interests in mind.
A guardian ad litem must be appointed promptly to advocate for the best interests of the minor trafficking victim and to secure assistance for the child as quickly as possible. HHS should therefore be required to appoint a guardian ad litem within three (3) business days of identifying a child victim.
12. End demand for minor sex trafficking victims through stronger criminal provisions against sexual predators who abuse minors
Currently, the law on sex trafficking of a minor requires proof of knowledge of a victim’s age. Because minors in sex trafficking often have false identification or no identity documents, it is difficult for prosecutors to prove knowledge of their age. This situation is an obstacle to prosecute sex traffickers.
This amendment would clarify that knowledge of a minor victim’s age is not a required element of the crime of sex trafficking of a minor; nor is mistake of age an affirmative defense. It would put the sex trafficking provision in line with other crimes against children, where knowledge of the victim’s age is not required.
13. Funding for shelter programs and comprehensive legal services
A. Service providers are currently challenged by the lack of legal services and appropriate shelter for victims; yet these are two of the most important needs of trafficking survivors. The need for shelters for trafficking victims is especially dire since many shelters, including domestic violence and homeless shelters, are not appropriate and/or are unwilling to house trafficking survivors due to, among other reasons, safety and/or capacity issues. Without appropriate shelters for survivors of trafficking, many trafficking victims will be unable to escape from their trafficking situations and many others will be homeless or housed in inappropriate facilities.
B. Currently, federal grants and contracts do not provide sufficient funding to sustain legal services programs for survivors of trafficking. Legal services are essential to the identification, protection, and empowerment of survivors of trafficking. Funding direct legal services for survivors of trafficking will help many victims escape from slavery, cooperate with law enforcement, and become self-sufficient.
14. Extend criminal jurisdiction for trafficking crimes committed abroad.
This amendment provides extraterritorial jurisdiction for trafficking crimes. Certain other heinous crimes are treated in this way: torture, slavery, disappearances, extrajudicial killings, war crimes, and genocide. It is appropriate to include trafficking because of its linkage to slavery (i.e., people are trafficked into slavery. NGO’s working with trafficking victims have found that they are brutalized, tortured, raped, and enslaved. Because these crimes that already have universal jurisdiction are elements of trafficking, we recommend extending it to trafficking to aid in prosecution of the crime under U.S. law.
15. Diplomatic Use of Forced Labor
I. Ensure that diplomats who traffick workers from their home country to work in their country’s embassy/missions in the US are subject to US laws regarding trafficking and forced labor
II. Mandate preventative measures to protect domestic workers with A-3, G-5, or NATO-7 visas from becoming victims of trafficking or other labor and employment abuses.
The US Government issues A-3, G-5 and NATO-7 visas to the domestic workers of staff of embassies, foreign missions, international organizations, and NATO. These visas are a privilege granted to diplomats, and one that requires the employers to sign employment contracts guaranteeing fair labor conditions under federal and state laws for their workers. In addition to the contracts, international law requires the employers to comply with US law in the treatment of their employees, but too often these employers subject their domestic workers to trafficking, exploitation and other employment violations.
Domestic workers in the US on A-3, G-5 or NATO-7 visas are often completely isolated in their employer’s home and unaware of their rights or the services available to them in the US.
16. Conduct a meta-analysis to promote further cross-agency collaboration and consistency of analysis, which will better inform policy and decision-making.
A 2006 GAO study requested by Rep. Jim Sensenbrenner, then Chair of the House Judiciary Committee, and Rep. Henry Hyde, then Chair of the House International Relations Committee, found that the US needs better data, strategy and reporting to enhance its US anti-trafficking efforts. For example, the report found that US government estimates of trafficking are questionable, concluding " The US government has not yet established an effective mechanism for estimating the number of victims or for conducting ongoing analysis of trafficking related data that resides within government entities."
The Department of State initially began a database when charged with anti-trafficking responsibilities, but that effort could not be sustained due to lack of funding. This amendment is intended to address that need, and to promote further cross-agency collaboration and consistency of analysis, which will better inform policy and decision-making.
17. Include information on benefits and services to victims under Justice Department programs, in the Attorney General’s annual report to Congress on trafficking.
The Attorney General is currently required to submit an annual report to Congress, which includes the number of persons who have received benefits or services under programs of the Department of Health and Human Services, Department of Labor and Legal Services Corporation.
Concurrently the Justice Department is involved in victim assistance and these numbers are not included in the Attorney General’s report. This amendment would ensure that information on the number of victims served by both Department of Justice and Department of Health and Human Services programs are included in the annual report.
18. Addition to the Attorney General’s annual report to Congress
Congress intended the Attorney General's annual report to provide an overview of the anti-trafficking activities of the US government. However, the Attorney General is not mandated to report on certain significant anti-trafficking activities undertaken by US agencies. This amendment would correct that deficiency by adding additional reporting requirements.
19. Add Department of Education to the Interagency Task Force and the Senior Policy Operating Group
The Department of Education has a key role to play in raising awareness about human trafficking issues and preventing trafficking of vulnerable school-age children. Because monitoring of awareness and prevention efforts are crucial functions of the Interagency Task Force, the input of the Department of Education is necessary.
This amendment would make the Secretary of Education a member of both the Interagency Task Force and the Senior Policy Operating Group.
20. Provisions for U.S. citizen victims to ensure that they are certified
Currently, the HHS “certification” process is used to count survivors of trafficking as well as being a gateway to services. However, certification is only available to foreign nationals and also requires law enforcement collaboration, meaning that many survivors will not be counted. In order to ensure that as many survivors as possible are counted by the federal government, this amendment would open up the certification process to all survivors of human trafficking and create a self-petition or service provider referral process.
21. Provisions to ensure the safety of workers by requiring registration of foreign labor contractors and reporting by the Department of Labor.
These provisions would require persons engaging in foreign labor contracting activity to disclose in writing both in English and in a language understood by the worker at the time of the worker’s recruitment: the location and period of employment; compensation and benefits; job descriptions; and education and training.
The provisions should prohibit foreign labor contractors or employers from knowingly providing materially false or misleading information to any worker concerning any matter required to be disclosed.
Additionally, foreign labor contractors must register with the DOL before engaging in recruitment. The DOL should establish a mechanism for complaints against foreign labor contractors and maintain a list of all registered foreign labor contractors and make it public through the internet and publication.