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Department of Labor U and T Visa Process and Protocols
Question - Answer


Questions

  1. What are U Visas?
  2. What authority does the Department of Labor have to complete U Visa Certifications?
  3. What is Form I-918, Supplement B, U Visa Certification?
  4. What agency within the Department of Labor has authority to complete U Visa Certification requests?
  5. Where will the authority to certify rest within the Wage and Hour Division?
  6. What factors will the Wage and Hour Division consider in response to a request for completion of a U Visa Certification?
  7. Which U Visa qualifying criminal activities will the Department of Labor consider for certification?
  8. Will the Department of Labor certify U Visa petitions based upon qualifying criminal activities that are unrelated to an investigation of a civil law under Wage and Hour Division jurisdiction?
  9. Why has the Department identified certain qualifying criminal activities for certification?
  10. What should a petitioner and/or his or her representative expect when requesting certification of a Supplement B form for a U Visa?
  11. What should a petitioner expect if his or her request is denied?
  12. Is the Department obligated to complete every request for a U Visa Certification?
  13. Will the Department of Labor refer underlying qualifying criminal activities for prosecution?
  14. How long does the Department of Labor expect the certification process to take?
  15. Does the Department of Labors completion of a U Visa Certification result in the issuance of a U Visa?
  16. What training will Wage and Hour Division employees be provided on U Visas?
  17. Will the Department of Labor review these processes and procedures?
  18. What are T Visas?
  19. What are Severe Forms of Trafficking in Persons for purposes of a T Visa?
  20. What factors will the Wage and Hour Division consider in response to a request for completion of a T Visa Certification?
  21. What should a petitioner and/or his or her representative expect when requesting certification of Form I-914, Supplement B for a T Visa?
  22. Does the Department of Labors completion of a T Visa Certification result in the issuance of a T Visa?





Answers

1. Q. What are U Visas?

U nonimmigrant visas (U visas) were created by the Victims of Trafficking and Violence Prevention Act of 2000 (Public Law 106-386). Victims of qualifying criminal activities who have suffered substantial physical or mental abuse may apply for a U visa if they are willing to assist law enforcement or other government officials in the investigation or prosecution of those crimes. Individuals who receive U visas may remain in the United States for up to four years, and may eventually apply for permanent residency. Among other requirements, a U visa petitioner must ask a federal law enforcement agency or official to complete a certification form asserting that the U visa petitioner has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the criminal activity. The Department of Homeland Security, U.S. Citizenship and Immigration Services, administers this program and grants or denies U visa petitions. UPDATE: Beginning April 2, 2015 the Department of Labor will also accept certification requests for T nonimmigrant visas. See below for more information about the T nonimmigrant visa.


2. Q. What authority does the Department of Labor have to complete U Visa Certifications?

Department of Homeland Security regulations (8 C.F.R. 214.14(a)(2)) expressly list certain federal law enforcement agencies that may certify U visa applications, including the Department of Labor. In doing so, the Department of Homeland Security recognized that Department of Labor investigators may detect evidence of qualifying criminal activity during the course of investigating violations of workplace laws. The Department of Labors authority to complete U visa certifications (Form I-918, Supplement B) is based on its role as a law enforcement agency that has detected the crimes.


3. Q. What is Form I-918, Supplement B, U Visa Certification?

U. S. Citizenship and Immigration Services Form I-918, Supplement B (or U visa certification) is the specific form that a petitioner asks the Department of Labor to complete and sign as part of his or her petition for a U visa. The U visa certification does not provide individuals with a U visa; rather, the certification form is a required element in a U visa petitioners petition to U.S. Citizenship and Immigration Services. In completing the U visa certification, the agency must certify that the individual submitting the Form I-918 is a victim of a certain qualifying criminal activity and is, has been, or is likely to be helpful in the investigation or prosecution of that activity. The Department of Labor has developed protocols to ensure the U visa certification process the completion of the U visa certification is efficient and effective.


4. Q. What agency within the Department of Labor has authority to complete U Visa Certification requests?

The authority to complete U visa certifications has been delegated to the Wage and Hour Division. The Wage and Hour Division is responsible for enforcing some of the nations most comprehensive federal labor laws, including the minimum wage, overtime pay, child labor, the employment of persons with disabilities, family and medical leave, the employment of temporary or seasonal migrant workers, and prevailing wages for government service and construction contracts. While the Wage and Hour Division does not investigate violations of qualifying criminal activities, it does conduct investigations for minimum wage and overtime violations. Because many Wage and Hour investigations take place in industries that employ vulnerable workers, the Wage and Hour Division is often the first federal agency to make contact with these workers and detect criminal activity in the workplace, which it may then refer to the appropriate authorities. Additional agencies may be delegated authority where appropriate. UPDATE: The authority to complete T visa certifications has also been delegated to the Wage and Hour Division.


5. Q. Where will the authority to certify rest within the Wage and Hour Division?

The certification process has been delegated to the Wage and Hour Divisions Regional Administrators located in five cities around the country. These senior agency officials will have the resources and training needed to make ultimate decisions about certification. Each official will be assisted by a regional coordinator, who will have additional training to ensure that requests for certification will be handled efficiently and effectively. Wage and Hour Division officials will work closely with the Regional Solicitor of Labor offices in the consideration of certification. The final authority to complete U visa certifications is delegated to the Regional Administrator.


6. Q. What factors will the Wage and Hour Division consider in response to a request for completion of a U Visa Certification?

The primary factors that will be considered include whether: 1) the qualifying criminal activity arises in the context of an employment relationship or work environment and there is a related, credible allegation of a violation of a law the Wage and Hour Division enforces; 2) the petitioner alleges a qualifying criminal activity of involuntary servitude, peonage, trafficking, obstruction of justice or witness tampering; 3) the petitioner has demonstrated that he or she has been, is being, or is likely to be helpful to law enforcement officials in any investigation or prosecution of the qualifying criminal activity; 4) another law enforcement agency is already engaged in the investigation of the qualifying criminal activity or would be in a better position to certify based on the facts presented; and 5) whether completion of the U visa Certification would assist the Departments investigation of a violation of a law that it enforces. UPDATE: Beginning April 2, 2015, the Wage and Hour Division will also accept requests for certification for petitioners who allege they were victims of the qualifying criminal activities of extortion, fraud in foreign labor contracting, and forced labor.


7. Q. Which U Visa qualifying criminal activities will the Department of Labor consider for certification?

As of April 2, 2015, when detected in the process of investigating a civil law under its jurisdiction, the Wage and Hour Division will consider completing U visa certifications, Form I-918, Supplement B, for the following eight crimes: involuntary servitude, peonage, trafficking, obstruction of justice, witness tampering, fraud in foreign labor contracting, extortion and forced labor.


8. Q. Will the Department of Labor certify U Visa petitions based upon qualifying criminal activities that are unrelated to an investigation of a civil law under Wage and Hour Division jurisdiction?

No. The Wage and Hour Division will only certify for the eight qualifying criminal activities identified above when they are detected in the process of investigating an allegation of a civil law under its jurisdiction, for example, the right to a minimum wage and overtime. The alleged qualifying criminal activity must arise in the context of a work environment or an employment relationship and there must be a related, credible allegation of a violation of a law that the Wage and Hour Division enforces. UPDATE: Beginning April 2, 2015, the Wage and Hour Division will also accept requests for certification for petitioners who allege they were victims of the qualifying criminal activities of extortion, fraud in foreign labor contracting, and forced labor. This means that the Wage and Hour Division will now certify for 8 qualifying criminal activities.


9. Q. Why has the Department identified certain qualifying criminal activities for certification?

The Department of Labor has determined it will consider completing U visa certifications where it has detected violations of qualifying criminal activities it is most likely to uncover in its investigations. In 2011 the Department identified five qualifying criminal activities that it would consider completing U visa certifications for. UPDATE: Beginning April 2, 2015, the Department will also consider completing U visa certifications where it has detected three additional crimes extortion, fraud in foreign labor contracting, or forced labor. These three crimes were added as eligible for certification because Department of Labor determined that they are also likely to be found in connection with the Wage and Hour Divisions workplace investigations.


10. Q. What should a petitioner and/or his or her representative expect when requesting certification of a Supplement B form for a U Visa?

All requests for completion of a U visa certification will be directed to the regional coordinator. In most cases the regional coordinator will interview the petitioner regarding their allegations to determine whether or not the request meets the requisite factors identified to consider certification. The petitioners underlying minimum wage or overtime complaint will be addressed according to the Wage and Hour Divisions standard complaint policy. Should the regional coordinator determine that the request is related to an ongoing Wage and Hour investigation, the regional coordinator will notify the appropriate Wage and Hour Division district office and investigator. The regional coordinator will work as appropriate with colleagues in the Regional Solicitor of Labors office in consideration of the request. The Department of Labor recognizes the importance of expeditious processing and timely responses and intends to notify the petitioner and/or his or her representative of its decision in writing as soon as possible.

The petitioner and/or his or her representative will be responsible for completing the remainder of the U visa petition and submitting required information to the Department of Homeland Securitys U.S. Citizenship and Immigration Services (USCIS). Should the Department of Labor determine a certification is appropriate, it will only complete one portion of the application, the Form I-918, Supplement B certification. Once the U visa certification is complete, it must be returned to the petitioner, who is responsible for submitting it to USCIS as part of the entire U visa petition package. The petitioner must demonstrate to USCIS that he/she meets all eligibility requirements for the U visa. For information on USCIS process for determining eligibility for U visa contact them directly or visit their web site at http://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes.

In some instances, it is possible that a Wage and Hour Division investigator will detect a qualifying criminal activity during the course of an investigation. Should this occur, the Wage and Hour Division investigator will provide information about the detection to the appropriate regional coordinator, who, in conference with the Regional Administrator, will decide how best to proceed given the facts and circumstances of the case.


11. Q. What should a petitioner expect if his or her request is denied?

If a decision is made not to certify the Form I-918, Supplement B, the petitioner or his or her representative will be informed of the decision in writing as soon as possible, along with information as to other law enforcement agencies that may be able to certify the petition.


12. Q. Is the Department obligated to complete every request for a U Visa Certification?

The U visa certification requires the Department of Labor to attest that the petitioner is a victim of certain qualifying criminal activity, and is, has been, or is likely to be helpful in the investigation or prosecution of that activity. The Department of Labor has established protocols that it will follow when considering a request to complete a U visa certification. Completion of a U visa certification is entirely discretionary.


13. Q. Will the Department of Labor refer underlying qualifying criminal activities for prosecution?

The Wage and Hour Division will refer the underlying qualifying criminal activity to appropriate law enforcement agencies in accordance with its normal referral procedure. The Wage and Hour Division places paramount importance on the safety of a petitioner, his or her family, and other individuals who have been harmed or who may be at risk. The timing and proper recipient of each referral will be made on a case-by-case basis. Proper confidentiality procedures will be followed in any referral.


14. Q. How long does the Department of Labor expect the certification process to take?

The Department of Labor recognizes the importance of expeditious processing and timely responses. The Department anticipates that it will take three months to review a single U visa certification request and make a determination as to whether or not to complete the certification. This timeframe will vary, however, depending upon the complexity of the case and the overall volume of U visa certification requests the Departments regional representatives are handling at any one time. This estimated timeline may be adjusted based on the Departments experience reviewing certification requests under the procedures outlined. The Department intends to notify the petitioner and/or his or her representative of its decision in writing as soon as possible. UPDATE: The Department anticipates similar review times for T visa certifications.


15. Q. Does the Department of Labors completion of a U Visa Certification result in the issuance of a U Visa?

No. The Department of Labor, like other federal and state law enforcement agencies, including the Equal Employment Opportunity Commission, has the authority to complete the portion of a petitioners U visa petition known as the Form I-918, Supplement B. The Department of Labor does not have the authority to issue a U visa. The decision whether to approve or deny a U visa petition rests solely with the Department of Homeland Securitys U.S. Citizenship and Immigration Services.

The presence of a completed law enforcement certification from a certifying agency does not guarantee the victim will be granted a U visa. The petitioner must demonstrate to U.S. Citizenship and Immigration Services that he/she meets all eligibility requirements for the U visa, including whether he or she is a victim of a qualifying criminal activity and whether he or she has, is, or is likely to provide assistance in the detection, investigation or prosecution of the qualifying criminal activity. The victim will include supporting evidence of the certified crime, other than the certification, to meet this burden.


16. Q. What training will Wage and Hour Division employees be provided on U Visas?

Guidance and initial training concerning investigation protocols and the handling of Supplement B form certifications has already been provided to certain key Wage and Hour Division and Regional Solicitor of Labor staff. Further training is planned for the future. Guidance will be shared with other Department of Labor worker protection agencies that may also encounter U visa issues as appropriate. UPDATE: The Department will similarly provide training to certain key Wage and Hour Division and Regional Solicitor of Labor staff on handling T visa certifications as well as training on the additional qualifying criminal activities under the Departments U visa certification process added in April, 2015.


17. Q. Will the Department of Labor review these processes and procedures?

The Wage and Hour Division will regularly evaluate protocols for effectiveness and efficiency. Revisions may be made as deemed necessary.


18. Q. What are T Visas?

Like the U nonimmigrant visa, the T nonimmigrant visa (T visa) was also established by the Victims of Trafficking and Violence Protection Act of 2000. Victims of severe forms of trafficking in persons who are physically present in the United States on account of such trafficking, comply with any reasonable request for assistance in the Federal, State, or local investigation or prosecution of acts of trafficking; and demonstrate that he or she would suffer extreme hardship involving unusual and severe harm upon removal may qualify for a T visa. The Department of Homeland Securitys U.S. Citizenship and Immigration Services has the sole jurisdiction to decide whether the applicant meets these requirements and whether to grant or deny a T visa application. For information about the T and U visas please visit http://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes.


19. Q. What are Severe Forms of Trafficking in Persons for purposes of a T Visa?

Severe forms of trafficking in persons also known as human trafficking is defined as the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purposes of subjection to involuntary servitude, peonage, debt bondage, or slavery or sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age. This definition encompasses trafficking crimes that the Wage and Hour Division considers as eligible qualifying criminal activities for U visa purposes. Requests for law enforcement certification of trafficking in persons should specify whether the certification is being requested as part of a U visa application, which would be a request for Form I-918, Supplement B, or for a T Visa application, which would be a request for Form I-914, Supplement B.


20. Q. What factors will the Wage and Hour Division consider in response to a request for completion of a T Visa Certification?

The primary factors that will be considered include whether: 1) the severe form of human trafficking arises in the context of an employment relationship or work environment and there is a credible allegation of a violation of a law the Wage and Hour Division enforces related to the employment relationship or work environment; 2) the petitioner complied with any reasonable request for assistance in the detection, investigation or prosecution of the trafficking; 3) if another law enforcement agency is already engaged in the investigation of the trafficking activity or would be in a better position to certify based on the facts presented; and 4) completion of the T visa certification would assist the Departments investigation of a violation of a law that it enforces.


21. Q. What should a petitioner and/or his or her representative expect when requesting certification of Form I-914, Supplement B for a T Visa?

The Departments T visa certification protocols are identical to the protocols previously adopted for consideration of U visa certification requests, absent minor changes specific to each type of visa, and those protocols have been updated with an addendum explaining the updated guidelines and procedures. Some victims may be eligible for T and U visas, depending on their circumstances. Victims and their representatives have the discretion to request the preferred certification from the Wage and Hour Division.


22. Q. Does the Department of Labors completion of a T Visa Certification result in the issuance of a T Visa?

No. Similar to U visas, the Department of Labor does not have the authority to issue a T visa. The decision of whether to approve or deny a T visa petition rests solely with the Department of Homeland Securitys U.S. Citizenship and Immigration Services (USCIS). The Department of Labor, like other federal and state law enforcement agencies, has the authority to complete the certification portion of a T visa petition known as Form I-914, Supplement B, Declaration of Law Enforcement Officer for Victim of Trafficking in Persons.

A law enforcement agency certification for a T visa is not required, but when available, is given significant weight as evidence that the applicant complied with reasonable requests for assistance from a law enforcement agency. The presence of a completed T visa law enforcement certification from a certifying agency does not guarantee the victim will be granted a T visa. The petitioner must demonstrate to USCIS that he/she meets all eligibility requirements for the T visa, including whether he or she is a victim of a severe form of trafficking in persons and whether he or she has complied with reasonable requests for assistance from a law enforcement agency in the detection, investigation or prosecution of acts of trafficking. The victim must include supporting evidence, other than the certification, to meet this burden.