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

The U visa is a helpful option for non-citizens in the United States (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 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 can become eligible for a U visa.

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.

What Are the Benefits to Employees of Applying for a U Visa?

A U visa offers many benefits. It allows its holder to remain in the United States 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 What Family Members Need to Prove to Get Derivative U Status and Later a Green Card.)

Types of Crimes That Qualify Victims for a U Visa

The U visa was created by Congress in the year 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.

U visa applicants must show that they:

• suffered substantial physical or mental abuse as a result of having been a victim of criminal activity
• possess information concerning the criminal activity, and
• have been helpful, are being helpful, or are 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 a U Visa Can Be Requested in Connection With Workplace Violation

A U visa could 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.

What Types of Qualifying Criminal Activities Frequently Occur 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.
• Human 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 workers if they do 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 workers that, for instance, they owe $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 can 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.