U Visa & Injured Workers

Workplace Violence - U Visa - Victim of a Crime - Immigration

Have you been injured at work because of your employer? U Visa

Have you been injured at work because of a fellow employee?

Have you been injured at work because of a violent act?

Have you been injured at work because of any criminal activity?

If you answered YES, to any of the above, you may be eligible for immigration status, a work permit and may be allowed to become a lawful permanent resident in the U.S.  

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Introduction:  The U Visa and How It Can Protect Immigrant Injured Workers

How am I eligible for a U Visa if I was injured at work?  In the workplace, employees can often be victims of:

  • employer exploitation;
  • violations of wage and hour laws;
  • violations of equal employment protections;
  • harassment
  • physical, emotional, psychological or sexual abuse; and
  • many other fact based problematic issues.

In certain circumstance, any of the above instances may rise to the level of criminal activity.  In those situations, depending on the crime and other factors, workers may be eligible for a U nonimmigrant visa which may also lead to lawful permanent residence (green card) in the United States.

Employees who resist to report criminal activity to law enforcement because of the fear employer retaliation, being targeted for lack of a current lawful status or being terminated.   However, employees can be empowered to improve their workplace circumstances and conditions with the possibility of U visa protections and relief if they are willing to assist law enforcement.

A U visa may be particularly useful for situations where an employer uses workers’ immigration status to deny them what they legally should be earning, to deny them a workplace that complies with legal safety requirements, or to use their position of power to commit sexual or violent crimes against workers.

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What Is the U Visa’s Purpose?

Congress created the U nonimmigrant visa in 2000 when it passed the Victims of Trafficking and Violence Protection Act.  Its purpose was to encourage immigrants to report crimes to law enforcement and also to afford protection for those willing to cooperate.  Congress intended that the law would protect victims of domestic and other violent crimes, but it also explicitly expressed its intent that the visa protect against qualifying workplace-related crimes.

 

What Are the Benefits of the U Visa?

U visa status benefits include the following:

  • Lawful status for up to four years;
  • Work authorization;
  • Derivative benefits for qualifying family members; and
  • Eligibility to adjust status to a lawful permanent resident after three years.

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When Is a Worker Eligible for a U Visa?

To be eligible for a U visa, a worker must meet the following criteria:

  1. The worker has suffered substantial physical or mental abuse as a result of having been a victim of a qualifying criminal activity;
  2. The worker has information about the criminal activity;
  3. The worker has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the crime; and
  4. The criminal activity violated local, state, or federal law, or occurred in the U.S.

 

What Is the U Visa Petition Process?

To apply for a U visa, the worker or someone on the worker’s behalf must complete the following:

  • Form I-918, Petition for U Nonimmigrant Status.This form requests biographical information about the worker, the worker’s family members, and additional questions to determine the worker’s eligibility. The form is available at USCIS.gov.
  • Form I-918, Supplement A, Evidence to Establish Derivative U Nonimmigrant Status. This supplement is optional for petitioners who wish to petition for qualifying family members.  A separate Supplement A must be completed for each qualifying family member the worker wishes to file for.  If the worker is under age 21, qualifying family members include siblings under 18, the worker’s spouse, parents, and any children.  Workers above age 21 cannot petition for their parents or siblings, but may petition for their spouse and children.
  • Form I-918, Supplement B, U Nonimmigrant Status Certification. This supplement is a mandatory certification form that must be completed by a government entity with authority to certify U visas.  That entity must certify that the petitioner is a victim of one of the categories of qualifying criminal activities; has knowledge of the activity; and has helped, is currently helping, or is likely to help in the investigation or prosecution of the crime.
  • Supplemental Evidence. The worker must include a personal statement that provides a narrative of the crimes of which the worker is a victim and information about any resulting injuries.  The worker also should submit evidence, including affidavits, doctors’ reports, psychiatric evaluations, therapy session notes, court documents, police reports, or anything else that supports the worker’s claim.

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Which Government Entities Have Certifying Authority?

A number of government entities have the authority to certify U visas, including federal, state, or local law enforcement agencies, prosecutors, judges, or other authorities with responsibility for the investigation or prosecution of qualifying criminal activities.  Also included in that list are federal, state and local agencies that enforce employment and labor laws, such as the U.S. Department of Labor, the Equal Employment Opportunity Commission, and the National Labor Relations Board.

Since the U visa is a relatively new visa, there is considerable confusion among government agencies regarding certifying authority and the identification of qualifying criminal activity.  It is important to note, when working with an agency, that U.S. Citizenship and Immigration Services (USCIS) regulations permit U visa certification on the basis of a crime that is detected, even if the certifying agency has no authority to enforce that crime.  This was partly to further Congress’s “[intent] for individuals to be eligible for U nonimmigrant status at the very early stages of an investigation.”

  

What Constitutes Qualifying Criminal Activity?

The following is a list of criminal behaviors that were recognized as ones that are often directed against immigrants and that therefore constitute qualifying criminal activity for purposes of U visa eligibility.  The list includes categories of federal, state, or local criminal violations, and it attempts to paint the picture of the variety of activities that may qualify.

There are a few important points to note before reviewing this list:

  1. The list names different categories of crime but is not exhaustive.  Other crimes substantially similar to the listed crimes may also qualify.
  2. “Investigation or prosecution” of a crime includes the detection or investigation of a qualifying crime or criminal activity, as well as prosecution, conviction, or sentencing of the perpetrator of such crime or criminal activity.  USCIS intended this term to be interpreted broadly. Similarly, labor enforcement agencies are permitted to certify U visas on the basis of qualifying criminal activity they detect, even if they lack the authority to prosecute it.

 

LIST OF CRIMINAL BEHAVIORS

  • Abduction
  • Abusive Sexual Contact
  • Blackmail
  • Domestic Violence
  • Extortion
  • False Imprisonment
  • Felonious Assault
  • Female Genital Mutilation
  • Felonious Assault
  • Being Held Hostage
  • Incest
  • Involuntary Servitude
  • Kidnapping
  • Manslaughter
  • Murder
  • Obstruction of Justice
  • Peonage
  • Perjury
  • Prostitution
  • Rape
  • Sexual Assault
  • Sexual Exploitation
  • Slave Trade
  • Torture
  • Trafficking
  • Witness Tampering
  • Unlawful Criminal Restraint
  • Other Related Crimes

Includes any similar activity where the elements of the crime are substantially similar.

Also includes attempt, conspiracy, or solicitation to commit any of the above, and other related, crimes.

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Qualifying Criminal Activities Commonly Seen in the Workplace

Any of the criminal activity listed in the VTVPA could qualify a worker for a U visa, but the qualifying criminal activities that would be most likely to be found in the workplace are these:

  • Blackmail:An example would be an employer threatening to report a worker’s immigration status to induce the worker to give up money or something of value.
  • Trafficking:This includes recruiting, enticing, harboring, or transporting another person for labor purposes.
  • False imprisonment:Examples include chaining or locking doors and fences to keep workers inside.
  • Involuntary servitude:Defined in 22 U.S.C. § 7102(5) as a condition of servitude induced by means of: (A) any scheme, plan, or pattern intended to cause a person to believe that, if the person did not enter into or continue in such condition, that person or another person would suffer serious harm or physical restraint; or (B) the abuse or threatened abuse of the legal process. Examples include threatening harm to the worker if he or she does not continue to work, confiscating passports or other identity documents, using locks or fences to keep workers from leaving the premises, and keeping workers in locations that restrict food, housing, medical care, clothing, and other basic necessities.
  • Obstruction of justice:Examples include destroying, altering, or falsifying wage or work hours records or birth certificates (e.g. to fake a minor’s age).
  • Peonage:Telling a worker that he owes $10,000 for tools and supplies, deducting most or all of a worker’s wages to pay for the debt, and compelling the worker to continue working until the debt is paid off, for example, would constitute peonage.
  • Witness tampering:Threatening or intimidating a witness.
  • Fraud in foreign labor contracting:This is when someone “Knowingly and with intent to defraud, recruits, solicits, or hires a person outside the United States…For purposes of employment in the United States by means of materially false or fraudulent pretenses, representations or promises regarding that employment…” (8 U.S.C. § 1351.)

Notice that some commonly seen workplaces abuses, such as wage theft, employment discrimination, and collective bargaining violations, are not listed.  Making a good argument that the crime committed against you is similar to one of the listed U visa crimes is crucial, and it is where an experienced attorney can come in very handy. A collective bargaining violation may turn into an obstruction of justice or witness tampering case if the employer threatens to call immigration, or fire an employee, if the employee continues to participate in strikes and protests over the poor working conditions.

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