My client left the U.S. - is the T visa still an option for them?
A foreign national’s departure from the U.S. causes a break in the physical presence requirement unless the applicant is able meet one of three exceptions listed in 8 CFR. § 214.11(g)(2): (1) continued victimization; (2) new incident of trafficking; or (3) the applicant was allowed re-entry to the U.S. to participate in an LEA investigation or judicial process related to the trafficking.
Although there is no definition of “continued victimization,” the Vermont Service Center has historically interpreted this to encompass situations where the trafficker forced the victim to depart and return to the U.S. while still in the trafficking situation. Administrative Appeals Office (AAO) opinions have also suggested that the term “continued victimization” does not require that the T applicant be currently a victim of trafficking, and instead, may include ongoing victimization that directly results from past trafficking (Matter of A-M-M-B, July 2019). There has not been consistent interpretation of this particular exception.
In instances when the victim has departed the U.S. after their escape from the trafficking, the applicant for the T visa would need to demonstrate that they experienced a new incident of trafficking or their participation is required for a law enforcement investigation or prosecution related to the trafficking.
When raising the exception of new incident of trafficking, the applicant needs to show that this new incident meets the definition of severe form of trafficking. In other words, the new incident requires its own independent analysis that it falls within the legal definition of trafficking.
If the applicant is trying to meet the exception under the law enforcement investigation or judicial proceeding exception, the client’s participation in this investigatory or judicial process will need to be close in time to the re-entry or the applicant should have evidence that they are actively participating in the investigation or judicial process.
For additional insight, review: