The William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008 was unanimously passed by Congress on December 10, 2008 and was signed into law by President Bush on December 23rd, 2008. The law will take effect on March 23, 2009. In addition to authorizing funding for the Trafficking Victims Protection Act of 2000 through the year 2011, the TVPRA of 2008 creates, extends, and expands many important protections for child and adult victims of human trafficking and for unaccompanied undocumented children (UACs), who are at high risk of being trafficked.
The TVPRA of 2008 reauthorized existing U.S. programs to combat human trafficking and established new requirements and programs regarding trafficking into both sexual exploitation and forced labor. Among a wide range of initiatives, the bill establishes new programs to prevent trafficking from occurring in foreign countries where trafficking begins, widens U.S. assistance programs to U.S. citizens, and provides additional protections for trafficking survivors who are threatened by trafficking perpetrators, and for children who are at risk of being repatriated into the hands of traffickers or abusers. The act also improves upon existing criminal prohibitions against human traffickers, including the creation of new criminal tools to reach unscrupulous labor recruiters.
Expanded protection for victims and potential victims of human traffickingFor victims of human trafficking overseas, the law:
- Ensures that U.S. citizens don’t use products produced overseas with labor from trafficking victims. The Department of Labor must provide a regularly updated list of products that fall into this category.
- Mandates that the President shall establish and carry out programs to support foreign governments in identifying victims, protecting foreign workers, and informing immigrants in those countries of their basic rights.
- Stipulates that the U.S. government shall work with the United Nations High Commissioner for Refugees (UNHCR) to prevent refugees and internally displaced persons (IDPs) from being trafficked and ensuring that Best Interest Determinations are conducted for unaccompanied refugee minors (URMs).
- Requires regular review of the effectiveness of anti-trafficking programs inside and outside of the U.S.
- Increases penalties against foreign governments which are failing to meet minimum standards for the prevention of human trafficking and creates an award for governments which have undertaken extraordinary efforts to combat human trafficking.
- Mandates that the State Department’s Trafficking in Persons (TIP) report will include the status of all countries with respect to their efforts to combat human trafficking instead of only including information on those countries that have a “significant number” of trafficking victims.
- Requires that the length of time a country can remain on the Tier-2 category watch list be limited to two years before that country is classified as Tier-3, since it has not made significant efforts to meet ''minimum standards for the elimination of severe forms of trafficking''.
- Limits U.S. support, in the form of commercial sales of military equipment, to countries that use child soldiers.
For victims of human trafficking in the US, the law:
- Makes a federal crime out of obstructing the investigation of human trafficking; conspiring to traffic a human being; and receiving financial benefit from human trafficking.
- Imposes a 10 to 20 year sentence on those who use minors for prostitution.
- Requires that any funds seized from human traffickers are used to help trafficking victims instead of going to the Federal Treasury.
- Expands the purview of the Department of Justice to process sex crimes that had previously been prosecuted at the local level.
- Prevents the abuse, exploitation, and trafficking of foreign workers employed by diplomats in the U.S.
- Provides a number of modifications to provisions relating to the T and U visa category. Among other matters, the TVPRA of 2008 provides that a holder of a non-immigrant visa can adjust to permanent residency even if their T or U visas may have lapsed in the time period in which the adjustment regulations had not been promulgated. This provision is included as a stop-gap measure for those petitioners whose adjustment petitions were not processed because of the government's failure to issue regulations until that time.
- Lowers the standard of proof for occurrence of the crime of human trafficking from “force, fraud, or coercion” to “reckless disregard”, broadening the scope of who can be prosecuted for the crime of human trafficking. Ancillary participants, such as those who harbor undocumented persons for prostitution purposes, can now be prosecuted as well.
- Allows trafficking victims to stay in the U.S. during the prosecution of their traffickers and allows their relatives and derivatives who are at risk of retaliation from traffickers to be paroled into the U.S.
- Codifies into law the eligibility for public benefits of T visa recipients.
- Enables victims with pending T visa applications to access public benefits.
- Waives the requirement that victims cooperate with law enforcement in the prosecution of their traffickers in order to be certified as victims if they have suffered severe physical or psychological trauma.
- Allows potential child trafficking victims to access benefits, including URM foster care, if there is “credible evidence” that an alien child has been subjected to a severe form of trafficking.
- Ensures that additional funding is appropriated for benefits for trafficking victims.
- Authorizes new studies, reports, and data collection mechanisms to improve our understanding of human trafficking globally and in the U.S.
For unaccompanied undocumented children in the US, the law:
- Creates greater protections for repatriated UACs from certain countries.
- Places a greater priority on placing UACs in the least restrictive setting available; places greater restrictions on which can be placed in secure facilities; and calls for a monthly review of these placement decisions.
- Mandates that suitability assessments and follow up services be provided to far greater numbers of UACs and that they be provided for the duration of a UAC’s immigration proceedings.
- Improves the process by which eligible children receive Special Immigrant Juvenile Status (SIJS), including allowing Haitian children to be eligible for this status; directing the federal government to reimburse state and local programs that provide foster care to these children; and ensuring that children are not denied SIJS based on their age so long as they qualified for this status at the time of application.
- Requires training for government personnel who “have substantial contact” with UACs.