May 5, 2011
The United States has always been viewed as the land of potential unlimited possibilities. For that reason, individuals brave difficult journeys to get to the United States eager to fulfill their dreams. Rather than fulfilling their dreams, however, many individuals unfortunately become victims of employers who take advantage of their undocumented status. Although grateful to have a job, the working conditions of many undocumented immigrants actually amount to nothing less than modern day slavery.
In recognition of this plight, Secretary of Labor Hilda Solis announced last March 15, 2010, that the Wage and Hour Division of the Department of Labor (DOL) would be assisting individuals who are the victims of workplace crimes with the requirements needed to apply for a U Visa. The U Visa, which was created by Congress through the Victims of Trafficking and Violence Prevention Act of 2000, confers legal, nonimmigrant status to an individual that has been the victim of certain serious crimes. On April 28, 2011, the DOL announced the procedures that individuals must seek and requirements that they must establish in order for the DOL to provide assistance with the U visa petition.
To be eligible for a U visa, an individual applicant must provide evidence establishing the following requirements: (1) the individual must have suffered substantial physical or mental abuse due to a qualifying criminal activity; (2) he/she has information concerning the criminal activity; (3) he/she has been helpful, is being helpful, or is likely to be helpful to law enforcement officials in investigating or prosecuting the criminal activity; and (4) the crime violated US laws or occurred within the US.
The types of criminal activities that qualify a victim for a U visa are numerous. Examples of qualifying criminal activities include rape, torture, trafficking, incest, domestic violence, sexual assault, prostitution, involuntary servitude, slave trade, kidnapping, abduction, false imprisonment, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, and perjury.
In order for an individual to prove the requirement that he/she has been helpful, is being helpful, or is likely to be helpful to law enforcement officials in investigating or prosecuting the criminal activity, the individual must obtain a certification from the government agency conducting the investigation or prosecution of the qualifying crime. The recent DOL announcement provides the protocols that individuals must follow in order for the DOL to issue the necessary certification to support a U visa petition.
The DOL clarifies that it will issue U visa certifications only for the following specified crimes: involuntary servitude; peonage; trafficking; obstruction of justice; and witness tampering. The crime must arise in the context of a work environment or an employment relationship that relates to a violation of law that the DOL investigates.
Whether an employment situation amounts to involuntary servitude, peonage, or trafficking will greatly depend on the particular facts and circumstances surrounding the employment. An individual is a victim of involuntary servitude if he is mandated to perform labor, against his will, for the benefit of another due to force, threats, intimidation, or other similar means of coercion. The crime of peonage involves the same elements as the crime of involuntary servitude, but adds an element that the victim is compelled to conduct the work in order to repay some type of real or imagined debt. A violation of involuntary servitude or peonage can occur even if someone initially agreed to conduct the work and even if the person is getting paid.
If the DOL agrees that one of these particular crimes has been committed against an individual, they will issue the necessary U visa certification so that the individual may then apply for a U visa with the Department of Homeland Security. If granted, a U visa entitles an individual to lawfully reside and work in the US for a period of 4 years. Benefits are also available to the U visa holder’s spouse and children, as well as siblings and parents in certain situations. The individual may apply for permanent residency three years after obtaining the U visa.
The U visa empowers a victim of a serious crime to not only ensure that justice against the criminal perpetrator is obtained, but also to secure justice for himself/herself as a victim deserving of an opportunity in the United States. Given the legal complexities involved, individuals burdened by such a traumatic experience as being a victim of a serious crime should consult with a qualified immigration attorney to ensure that the rights and privileges afforded under the law are applied fairly and justly.