Monday, April 14, 2014

Employing the U-Visa to Defend Labor Law Prosecutions

Guest Blogger: Magdalena Ridley, second-year law student, University of San Francisco:

The U-Visa program is designed to support the prosecution of serious crimes, by making it safer for victims to cooperate with law enforcement without fear of immigration consequences.  To qualify, a victim must show substantial physical or mental abuse suffered as the result of an eligible crime, and proof of cooperation with law enforcement that is helpful toward investigation of the crime.  Crimes eligible under the U-visa program are generally physically violent crimes such as domestic violence, kidnapping, sexual assault, or murder, but perjury and witness tampering are among the types of serious crimes that can result in a victim receiving a U-Visa.  Recently, there have been signs that immigration-related retaliation taken against immigrants who report labor law violations may serve as eligible crimes for the U-Visa program.  This would be a worthwhile development toward enforcing labor laws and should be embraced.

A U-Visa is a nonimmigrant (non-permanent) visa that authorizes a person to work and live in the United States for 4 years.  It can also grant non-permanent status to their derivative beneficiaries, including the spouse and children for a victim over the age of 21, or, for a victim under 21 years of age, the spouse, children, parents and certain siblings.  The visa may be renewed if the victim’s continued assistance is required for the investigation of the crime.  A person with a U-Visa is also eligible to apply for an immigrant visa and gain permanent status, and their derivative beneficiaries are then also eligible to apply for lawful permanent resident status.  A person who helped law enforcement with information related to a crime years prior can still be eligible for a U-Visa.  Even a person who is already in removal proceedings can seek certification for a U-Visa and in this way earn status and stay in the United States.  If a person is otherwise inadmissible to the United States for reasons such as poor health or a criminal record, there is a broad waiver that can be sought at the same time as the U-Visa, and reasons to deny admissibility can be waived, except for national security grounds that are non-waivable.

Victims who have information regarding the crime and work with law enforcement in the investigation or prosecution are eligible for a U-Visa if they can show substantial mental or physical abuse due to the crime.  An indirect victim may also be eligible in the case where someone aside from the victim is needed to help the investigation because the actual victim is incapacitated.  As long as the immigrant’s participation was helpful to the law enforcement agency investigating the crime, the agency can fill out a form to certify as much.  This certification is a necessary component to any application for a U-Visa.  It is still the burden of the applicant to later show the immigration authorities that they have suffered substantial physical or mental abuse as a result of the crime, in order for their U-Visa to be approved.  Some factors that United States Citizenship and Immigration Services will use in making that determination are the nature of the injury, the severity of both the criminal conduct and the harm suffered, and any permanent damage to the physical health or appearance or mental health of the victim.

Recently, an immigrant named Antonio Vanegas was granted certification from the Labor Department for his U-Visa application, for his assistance in the investigation of a case of witness tampering.  Vanegas is an undocumented worker who reported his employer for wage theft and participated in a one-day strike where he spoke out publicly about the labor conditions in his place of employment, where he had worked for years.  Although there had never been a problem with his papers before, when he returned to work he was told there was a problem, and he was detained by immigration authorities for four days.  Also, his employer apparently told him he would be deported if he participated in further protests or strikes. 

Immigrants and immigrants-rights activists are certainly familiar with tactics like this, used by employers to discourage employees from reporting labor violations, so it is heartening to see the Labor Department sign off on his certification on witness tampering grounds.  If we ever hope to have compliance with the labor laws in this country, we must have a way of enforcing those laws, and without the testimony of the victims of such crimes, it is impossible.  The State of California seems to agree, since we have recently passed three laws that help to penalize employers for immigration-related retaliation that occurs due to an immigrant worker’s exercise of labor-related rights.  AB 524 specifically finds that a threat to report immigration status can induce sufficient fear to be considered criminal extortion.  These laws indicate a recognition of the seriousness of the problem of employers using workers’ immigration status in threats designed to silence victims of labor abuses. 

It remains to be seen how the immigration authorities will treat Mr. Vanegas’ case and whether they will find that substantial mental abuse resulted from his employer’s threats, but anyone who understands the nature of undocumented life in the United States should understand how devastating a threat to have someone deported can be.  With AB 524, California has shown that we do understand this type of anguish, and hopefully the tides are turning toward full recognition in the United State of the devastation these types of threats can cause.  This will serve not just the immigrants who can prevent deportation through a U-Visa, but ultimately it serves everyone, as the labor laws will be strengthened when employers can no longer flaunt the law by specifically abusing a vulnerable population who they can easily silence from ever reporting their crimes.   

bh

http://lawprofessors.typepad.com/immigration/2014/04/employing-the-u-visa-to-defend-labor-law-prosecutions.html

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