Extreme hardship for T visa purposes is a higher standard than required by other immigration remedies; in the T context, the standard is "extreme hardship involving unusual and severe harm." 8 CFR § 214.11(i). Because of this higher standard, CAST recommends that applicants rely on at least three extreme hardship factors found in the T visa regulations at 8 CFR § 214.11(i)(2).

Although the factors are not an exhaustive list, we have found success in arguing at least three T visa regulation factors in all T visa applications. The strongest extreme hardship arguments are those that are directly related to the trafficking experience. For example, that the applicant would suffer hardship:

• as a result of loss of access to human trafficking victim services they're receiving here;
• if they were to lose access to the legal system (where there is an investigation, prosecution, or civil suit, for example); 
• because they are likely to experience retaliation by the trafficker in home country.

Other extreme hardship arguments can be made, but may lead to further scrutiny or future requests for evidence (RFEs). Here is a summary of the potentially weaknesses of other extreme hardship arguments:

• 8 CFR § 214.11(i)(2)(viii) - Arguments related to civil unrest, armed conflict, or other dangerous home country conditions may take the focus off the trafficking and make the application appear more like an asylum application. CAST has seen adjudicators question an applicant's eligibility under the extreme hardship prong when civil unrest or high rates of unrelated gang violence are argued because these conditions are not unique to the individual applicant or their trafficking victimization.
• 8 CFR § 214.11(i)(1) - Arguments based on future and present economic hardship are explicitly listed in the T visa regulations as not being sufficient, on their own, to rise to the level of extreme hardship for T visa purposes. Historically, adjudicators have been wary of arguments related an applicant's inability to find a stable job or repay loans. CAST advises avoiding these economic hardship arguments if possible to avoid scrutiny. If you include an economic hardship argument, we suggest making that argument last and including three other trafficking-related factors. 
• 8 CFR § 214.11(i)(2)(vi) - Arguments that the applicant will be at a greater risk of being re-trafficked should focus on trafficking-related facts and vulnerabilities to the extent possible. When arguing the risk of being re-trafficked, the strongest argument will be how the applicant is vulnerable to re-trafficking by their original trafficker based on specific threats that arose in their victimization. For example, one way to make this argument is focusing on the fact that the applicant is from a small town where there is only one foreign labor contractor (the original trafficker) which is the sole source of employment in that town. If they were to return home, their risk of being re-trafficked by their trafficker is substantially high.
  • Try to avoid arguments that the applicant will have a higher chance of being re-trafficked because they will be unable to find a job when they return. These arguments may trigger further scrutiny as they appear more like economic hardship arguments than one relating to the likelihood of re-victimization.
• There are some extreme hardship arguments that can result in additional scrutiny to the physical presence element of the T visa. Here are some examples:
  • U.S. Citizen Family Members: Adjudicators have used arguments relating to the inability to care for U.S. citizen children or family if deported to find that the applicant is not physically present on account of trafficking, but rather, is currently present in the U.S. because of family here. 
  • Accessing Medical Treatment: Adjudicators have used arguments relating to the loss of access to health care for a non-trafficking related medical condition or injury if deported to suggest that the applicant is not in the U.S. on account of trafficking, but rather, because they want medical treatment.

We suggest careful consideration of each possible hardship factor prior to inclusion in the applicant's declaration to ensure that the factor is strong and will not undermine other elements of the case. Finally, CAST suggests including the strongest extreme hardship factor first, along with reviewing USCIS's Policy Manual section on extreme hardship for T visa applicants, Vol. 3, Part B, Ch. 2.E.2.

If you have additional questions on how to argue extreme hardship, request individualized technical assistance here.