In early 2015, the Wage and Hour Division (WHD) of the Department of Labor will begin exercising its authority to certify applications for trafficking victims seeking T visas. In addition, WHD will expand its existing U visa program by certifying such requests when it detects three additional qualifying criminal activities in the course of its workplace investigations: extortion, forced labor, and fraud in foreign labor contracting. These efforts will significantly help qualifying victims of these crimes receive immigration relief from the Department of Homeland Security (DHS) and access the range of victim services that they need to recover and rebuild their lives.
Background: U and T Visas
The Victims of Trafficking and Violence Protection Act of 2000 created two types of visas available for certain victims of crimes:
- U nonimmigrant visas provide legal status to victims of an enumerated list of “qualifying criminal activities” who have suffered substantial physical or mental abuse, and possess information concerning that crime, and who have been, are being, or are likely to be helpful to law enforcement or government officials.
- T nonimmigrant visas provide legal status to certain victims of human trafficking who assist law enforcement authorities in the investigation or prosecution of trafficking crimes.
DHS’s U.S. Citizenship and Immigration Services (USCIS) decides whether to grant a request for a U or T visa. But applicants for U visas are required to submit a law enforcement agency’s certification that they are victims of a qualifying crime who meet the requirements for helpfulness in the investigation or prosecution of that crime. Applicants for T visas are “strongly encouraged” to submit a certification (also referred to as a declaration or endorsement) from a law enforcement agency to show that they have been victims of human trafficking and that they have complied with reasonable requests for assistance. For more information about U and T Visas visit DHS’s web site at http://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes.
In 2011, WHD began completing U visa certifications, when appropriate, for victims of five qualifying crimes detected in the connection with its workplace investigations: trafficking, involuntary servitude, peonage, obstruction of justice, and witness tampering.
In early 2015, WHD will make two important changes to its existing efforts in this area:
- Add three qualifying crimes for which it will complete U visa certifications, when appropriate, when detected in the course of WHD’s workplace investigations: extortion, forced labor, and fraud in foreign labor contracting (the latter of which was added to the list of qualifying crimes by the Violence Against Women Act Reauthorization of 2013); and
- Exercise similar authority by completing T Visa certifications for victims of human trafficking, where appropriate, when such activity is detected in the course of WHD’s workplace investigations.
As with any U or T visa application, the worker is responsible for completing the application and submitting it along with DOL’s certification to USCIS, which makes the decision of whether to grant such relief.
WHD proactively enforces workplace laws – including the federal minimum wage and overtime laws. Because many wage and hour investigations take place in industries that employ vulnerable workers, WHD is often the first federal agency to make contact with these workers and detect exploitation in the workplace. Such activities may then be referred to the appropriate authorities. By expanding its U visa certifications to include three new crimes and by completing T visa certifications, the Department is providing additional support to workers they believe are victims of the relevant crimes and are willing to cooperate with law enforcement.
The Department will publish a Federal Register Notice delegating the authority to issue T visa certifications to WHD before the end of the year and will amend its protocols and procedures to reflect these changes. Starting in early 2015, WHD’s Regional Administrators will consider requests related to these new certifications. As with its previously adopted protocols for the processing of U Visa certification requests, WHD anticipates that it will make determinations about whether to exercise its discretion to complete any particular request for certification within three months, but recognizes that the timeframe may vary depending on the complexity of the case and the volume of certification requests.