Immigration Article of the Day: Eunice Hyunhye Cho, Giselle Hass, and Leticia Saucedo, A New Understanding of Substantial Abuse: Evaluating Harm in U Visa Petitions for Immigrant Victims of Workplace Crime

 
Eunice Hyunhye Cho, Giselle Hass, and Leticia Saucedo, A New Understanding of Substantial Abuse: Evaluating Harm in U Visa Petitions for Immigrant Victims of Workplace Crime, 29 Georgetown Immigration Law Journal 1 (2015).

Abstract: This Article examines the legal concept of “substantial physical or mental abuse” suffered by immigrant victims of crime in the workplace, particularly as it relates to the ability to qualify for U non-immigrant status (commonly referred to as a “U visa”). Although legal scholars, medical and mental health experts, and government agencies have more robustly explored the concept of “substantial physical or mental abuse” in the context of domestic violence and sexual assault against immigrant women, there has been no focused exploration of this concept in relation to abuse of immigrant workers. In recent years, labor and civil rights enforcement agencies have increasingly certified U visa petitions in cases involving victims of workplace crime, but greater clarity is needed on the concept of substantial abuse in this context. This Article provides for the first time a comprehensive framework to evaluate abuse suffered by victims of workplace crime in the U visa context. Based on a multi-disciplinary analysis, the Article argues that adjudicators have erroneously conflated the U visa’s “substantial physical or mental abuse” standard with the standard of “extreme cruelty” developed in the context of immigration remedies for victims of domestic violence. The Article also argues that U visa adjudicators and advocates must account for the specific dynamics of abuse experienced by immigrant victims of workplace-based criminal activity, which are distinct from abuse displayed in more familiar cases of domestic violence, and examines particular forms of harm and vulnerabilities experienced by victims of workplace crime. The Article finally provides examples to assist adjudicators, policy-makers, and practitioners in the identification and assessment of workplace based U visa cases envisioned by the U visa statute and regulations.

KJ

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