The Extreme Hardship Requirement of the T-Nonimmigrant Status
What is a T Nonimmigrant Status?
In 2000 Congress passed the Victims of Trafficking and Violence Protection Act, which created the T nonimmigrant status, or T Visa, as a law enforcement tool and humanitarian aid for immigrant victims of severe human trafficking. There are approximately 14,500 to 17,5000 people trafficked within the United States each year, most of whom are immigrants. The T Visa allows immigrant victims of human trafficking to lawfully reside in the United States for four years with an opportunity to seek lawful permanent residence. Generally, in order to be eligible for the T Visa, applicants must demonstrate that:
They are a victim of human trafficking;
Are in the United States (or other qualifying territory) due to trafficking;
Will comply with reasonable requests from law enforcement to assist in an investigation or prosecution of their trafficker; and
Removal from the United States would result in “extreme hardship involving severe and usual harm.”
While each of these requirements presents its own difficulties, the extreme hardship requirement functions as a unique and substantial roadblock to T Visa approval.
Extreme Hardship Requirement
According to United States Citizenship and Immigration Services (USCIS), the extreme hardship involving severe and usual harm requirement for the T Visa is a higher burden of proof than mere “extreme hardship,” which may be sufficient for other visas. Thus, it is insufficient to demonstrate that returning to one’s country of origin would cause economic or social hardship, such as not having enough money to survive. Rather, in order to meet this high standard, applicants must also demonstrate that removal from the U.S. will cause them serious physical or psychological harm. Serious physical or psychological harm can be established by a need for medical care that is only available in the U.S., a need to use the U.S. civil or criminal systems, or showing a significant likelihood that the victim would be re-trafficked upon return to her country of origin.
Challenges of the Extreme Hardship Requirement
The ambiguous language of the extreme hardship requirement creates confusion about what applicants need to demonstrate in order to satisfy it. Further, USCIS, the executive agency which handles T Visa applications, has not provided direction regarding how applicants can meet this requirement. In turn, this confusion significantly contributes to the high rate of denial for T Visa applications.
Moreover, the vague language allows for different administrative interpretations of the extreme hardship requirement. As a result, even though human trafficking is considered a bipartisan issue, the way different parties and administrations interpret the requirements for T Visa approval effectively makes this a partisan issue. Thus, evidence of extreme hardship that may be sufficient during one administration may be insufficient for the next. In effect, applications are sporadically denied without a clear understanding of why.
Given the complex and confusing T Visa application process, applicants are best situated to gain T nonimmigrant status when they hire an immigraiton attorney. However, hiring an attorney is not feasible for many immigrants because of the cost, potential language barriers, and overarching fear about turning in one’s trafficker.
In an effort to combat some of the challenges posed by the extreme hardship requirement of the T Visa, USCIS can account for individual circumstances, such as the applicant's age, personal experience, and physical and mental illnesses. While a more individualized approach seems preferable, the immense discretion left to USCIS and each administration effectively contributes to the challenges laid out above. Overall, T Visa applicants would greatly benefit if USCIS would clarify the extreme hardship standard and provide means of satisfying it.
Alternative Option: U Nonimmigrant Visa
Thankfully, the T Visa is not the only resource available to immigrant victims of human trafficking. One popular alternative is the U Nonimmigrant Visa, which provides temporary lawful residence in the United States for victims of criminal activity. Even though the U Visa is similar to the T Visa, there is no requirement that the applicant show that they would suffer extreme hardship upon returning to their country of origin. Notably, petitioners need not apply for either the T or U Visa but can apply to both simultaneously.