Can Undocumented Person Mistreated by Employer Report Crime and Get a U Visa?

Which legal violations by your employer might qualify you for a U visa in order to stay in the U.S. and assist law enforcement authorities?

By Lisa Yankey,

The U visa is a helpful option for non-citizens in the U.S. (including undocumented persons, sometimes called "illegal aliens") if they are victims of certain types of crimes and are helping U.S. law enforcement. See U Visas for Crime Victims Assisting Law Enforcement: Who is Eligible for details on the qualifying criteria.

The most common use of the U visa is to help domestic violence victims. But that's not its only possible use: U visas are also available to victims of certain types of crimes by employers. Not every abusive action by a boss or company owner will qualify, but when worker abuse rises to the level of criminal activity, and is prosecuted, workers may become eligible for a U visa.

A U visa offers many benefits. It allows its holder to remain in the U.S. with work authorization for up to four years, and possibly to qualify for a green card (lawful permanent residence) after three years. (See Applying for a Green Card From U Status.) Family members of the principal U visa applicant can also qualify for derivative immigration status (see Petitioning for Green Cards for Family Members of U-1 Nonimmigrants.)

The key points to a successful U visa application in this context are the framing and presentation of the qualifying crime and the presentation of the proof of substantial suffering, as described below.

Types of Crimes That Qualify Victims for a U Visa

The U visa was created by Congress in 2000, with passage of the Victims of Trafficking and Violence Protection Act (VTVPA). It lists 26 types of qualifying criminal activity. However, similar acts that violate federal, state, or local criminal laws can also qualify someone for this visa.

A U visa applicant must show that he or she suffered substantial physical or mental abuse as a result of having been a victim of criminal activity, that he or she possesses information concerning the criminal activity, and that he or she has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the criminal activity. The applicant’s helpfulness must be certified on Form I-918 Supplement B, by a qualified law enforcement or other government official.

When U Visa Can Be Requested in Connection With Workplace Violation

A U visa may be particularly useful where an employer uses a worker's immigration status to deny what the worker should legally be earning, fails to provide a workplace that complies with safety-law requirements, or uses its position of power to commit sexual or violent crimes against workers.

Workers often do not report crimes committed against them out of fear of losing their existing immigration status or being deported (removed from the U.S.) based on lack of immigration status. Such fears make workers vulnerable to abuse by employers. It is not, however, a requirement for the U visa that the employer know that the worker is afraid of immigration consequences; only that the immigrant is a victim of a qualifying criminal activity.

Qualifying Criminal Activities Seen Frequently in the Workplace

Any of the types of criminal activity listed in the VTVPA could qualify a worker for a U visa, but the ones most likely to be found in the workplace include:

  • 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 (for instance, to fake a minor’s age).
  • Peonage: Telling a worker that he or she owes $10,000 for tools and supplies, deducting most or all of a worker’s wages to pay for the debt, and then compelling the worker to keep working until the debt is paid off, for example, would constitute peonage.
  • Witness tampering: Threatening or intimidating a witness to a court proceeding.
  • 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…” (18 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 handy.

A collective bargaining violation may also turn into an obstruction of justice or witness tampering case if the employer threatens to call immigration authorities, or to fire an employee who continues to participate in strikes and protests over poor working conditions.

Sex-related or violence-related criminal activity may be found in the workplace as well, potentially matching these types of qualifying criminal activity:

  • abusive sexual contact
  • rape
  • sexual assault
  • sexual exploitation, or
  • felonious assault.

Showing That You Meet the "Helpfulness" Requirement

Before applying for a U visa, the victim needs to be demonstrably helpful in the investigation or prosecution of the crime. Illegal workplace criminal activity could be reported by the non-citizen victim, but often is reported by a coworker or other person who learns of it. Once a victim becomes helpful in the investigation or prosecution of a workplace crime, he or she will be able to request the needed certification of helpfulness from U.S. authorities.

Getting a U visa certification for workplace criminal activity is, unfortunately, rare. Certain relevant federal agencies have been granted the ability to certify a victim's helpfulness, including the Department of Labor, the The National Labor Relations Board, and the Equal Employment Opportunity Commission.

Other authorities responsible for investigating or prosecuting qualifying criminal activities may also certify, including federal, state, and local law enforcement agencies, prosecutors, and judges. U.S. Citizenship and Immigration Services (USCIS) permits U visa certification on the basis of a crime even if the certifying agency has no authority to enforce it. Some states have enacted guidelines so that their own state housing or labor departments can certify a crime victim's helpfulness for U visa purposes.

Getting a certification without a lawyer may be difficult or impossible. Some local agencies that could certify helpfulness refuse to do so unless a lawyer makes the request on the victim's behalf.

Demonstrating Substantial Suffering Due to a Workplace Crime

If you’re a victim of a qualifying workplace crime (or any other crime) you will need to show, in order to get a U visa, that you have suffered substantial mental or physical abuse as a result. This will be easiest if the crime has a physical component, such as a sexual or a violent crime against a worker.

Substantial suffering must have come about as a result of the qualifying crime, and not just the surrounding abuse.

In workplace abuse cases, much of the victim’s suffering may have been caused by circumstances surrounding the crime. So, for instance, if you went on strike or joined a demonstration to obtain a raise or sick pay, the qualifying crime may have been the threats around or interference with the demonstration, not the suffering caused by the low wages. It is crucial that you also show a relation to the qualifying crime.

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