U Visas as a Tool and Protection for Immigrant Workers

The U visa was created in 2000 through the Victims of Trafficking and Violence Protection Act to combat human trafficking and to encourage immigrants to report crimes.  It is similar to the T visa, which specifically grants immigrants who have experienced a severe form of trafficking (either sex or labor trafficking) temporary authorization to remain and work in the U.S.  Compared to the T visa, the U visa provides a broader form of protection for immigrants, since it is not just limited to victims of severe trafficking.

Immigrants who are victims of certain crimes (including rape, trafficking, extortion, domestic violence, sexual assault, abusive sexual contact, being held hostage, involuntary servitude, false imprisonment, felonious assault, witness tampering, obstruction of justice, and perjury), and who help authorities investigate or prosecute those crimes, are eligible for a U visa. Immigrants may be granted a U visa if:

(1)   They have suffered substantial physical or mental abuse as a result of having been a victim of a qualifying criminal activity (which is defined broadly and includes, but is not limited to, the crimes listed above);

(2)   They possess information about the criminal activity;

(3)   They have been helpful, are being helpful, or are likely to be helpful to federal, state, or local authorities investigating or prosecuting the criminal activity; and

(4)   The criminal activity violated federal, state, or local law, or occurred in the U.S. 

To apply for a U visa, immigrants must submit a petition form along with a certification from a federal, state, or local authority confirming their eligibility.  A U visa provides immigrants with lawful status for up to four years, work authorization, and the ability to adjust their status to a lawful permanent resident after three years.

The U visa can be a powerful tool for immigrant workers.  In the labor context, witness tampering, perjury, and involuntary servitude are especially common.  Immigrant workers who are victims of these crimes may be eligible to apply for a U visa and obtain lawful status.  For example, in Garcia v. Audubon Communities Mgmt., LLC, 2008 WL 1774584 (E.D. La. Apr. 15, 2008), an employer promised its undocumented employees housing and weekly salaries in exchange for their labor.  However, the employer consistently underpaid the workers, and when the workers complained, the employer threatened them with deportation.  The court found this to be a showing of involuntary servitude and certified the workers’ U visa applications.

The National Labor Relations Board (NLRB) will also consider completing U visa and T visa certifications, in appropriate cases.

For more information on how U visas can protect immigrant workers or how to apply for a U visa, please contact your labor law counsel.