New U Visa Options for Victims of Workplace Violations

An exciting new avenue has just been expanded for undocumented individuals who have been victimized or otherwise mistreated by their employers.  The U.S. Department of Labor recently released a statement on its website indicating that the list of crimes it will consider for U visa certifications has grown.  Though applying for certifications with the DOL is still an arduous process, this announcement can be seen as an indication that the agency is becoming more receptive to using the U visa as a tool in furthering its own goal of promoting safe and fair workplaces for all employees.

To provide some background on this announcement, the DOL actually began signing U visa certifications back in 2011. The certifications were all signed by the Wage and Hour Division, and the list of qualifying crimes that they would actually consider was limited to five: trafficking, involuntary servitude, peonage, obstruction of justice, and witness tampering.  They were fairly strict in their interpretation of these statutes, so in many cases the victims might have had other options for obtaining the signatures through police or prosecutors anyway, when criminal charges were formally pursued.

With this new announcement, the DOL Wage and Hour Division has stated that it will add three new offenses to the previously-mentioned U visa certification list.  The new crimes are extortion, forced labor, and fraud in foreign labor contracting, and the DOL has stated on its website that it anticipates (though does not guarantee) that the organization will issue decisions on whether to grant U visa certification requests within three months of the date of request.  (This is welcome news as well, as it shows they are making some commitment to expediting the often-lengthy process).

I am particularly excited about the DOL’s decision to certify forced labor cases.  I have encountered a number of clients who I think this new provision will help.  Forced labor is generally defined as when an individual obtains the labor of a person:

The “abuse or threatened abuse of law or legal process” prong of this statute says to me that it could encompass situations in which an undocumented individual was forced to work time without pay because their boss threatened to “report them to ICE.”  Unfortunately, this is a scenario I encounter quite often.

The DOL will certainly require extensive documentation to prove that the claim is bona fide, and the individual making the allegations should be prepared to provide testimony and support to the DOL’s investigation of the employer, if one is commenced.  However, despite any challenges, I anticipate that this category will open up doors to many people who have been exploited by unscrupulous employers due to their fear of deportation.  In my own practice, I have expanded my line of questioning to include an inquiry into workplace violations by employers to see if an individual may qualify for a U visa despite not even realizing that they have been the victim of a crime.

The one downside of the DOL’s announcement and the resulting increase in individuals who will be rendered potentially eligible for U visa status is that it will likely make the wait time for U visa applicants even longer. This is because, as I have discussed in other blogs, there is a 10,000 cap on U visas each year. Once that cap is reached, applicants need to wait until the following fiscal year, which begins in October, for new visas to open up.  This expansion of the pool of applicants may cause the wait time to swell to over two years, which can seem like an eternity to an individual who is living without legal status.