In the last decade, labor protections for undocumented immigrant workers have come under attack. In its 2002 Hoffman Plastics decision, the Supreme Court found that undocumented workers fired in retaliation for engaging in mutual aid and protection and in violation of the National Labor Relations Act are not entitled to back pay. In the wake of Hoffman Plastics, immigrant workers’ rights activists have explored avenues outside of the National Labor Relations Act to expand protections for undocumented workers. One such route is to win undocumented workers protections by adjusting their immigration status through U-visas.
Congress created the U-visa in 2000 when it passed the Victims of Trafficking and Violence Protection Act (VTVPA). The underlying purpose of the U-visa is to protect immigrant victims and witnesses of crimes. U-visas provide undocumented individuals with (1) lawful status for up to four years; (2) work authorization, (3) the ability to apply for derivative immigration status for family members, and (4) eligibility to adjust to being a lawful permanent resident after three years. United States Citizen and Immigration Services (USCIS) is limited to awarding 10,000 U-visas per year. In order to qualify, an applicant must satisfy three criteria. They must show that (1) they have suffered substantial physical or mental abuse as a result of having been a victim of criminal activity; (2) that they possess information concerning that criminal activity; (3) and that they have been helpful, are being helpful, or are likely to be helpful to the investigation or prosecution of that criminal activity. To satisfy the third prong, an applicant must submit a form signed by a qualified government official certifying that individual’s cooperation with law enforcement.
The TVPA extends coverage to victims of twenty-six explicitly identified forms of “criminal activity,” but also to similar acts violating federal, state or local criminal laws. While most commonly associated with crimes of domestic and sexual violence, immigrants have successfully applied for U-visas in the context of labor disputes. Among the forms of criminal activity applicable to workplace crimes are trafficking, false imprisonment, involuntary servitude, obstruction of justice, witness tampering, and peonage. A host of government agencies, including the Department of Labor, National Labor Relations Board, and the Equal Employment Opportunity Commission are permitted to certify applicants. Further, government agencies that do not actually have the power to enforce laws related to crimes committed may certify. These includes federal, state, and local judges and “other authorit[ies], that [have] a responsibility for detection, investigation, prosecution, conviction, or sentencing of qualifying criminal activity.”
U-visa protections do not currently extend to violations such as wage theft, employment discrimination, or violation of collective bargaining rights. Victims of labor abuses must find alternative means of obtaining certifications. For example, in December 2013, Antonio Vanegas, a Guatemalan native working in Washington, DC, was granted a U-visa after reporting his employer for wage theft. The Department of Labor was able to certify him, but not on the wage theft grounds. Rather, his employers were accused of witness tampering after they threatened to fire Vanegas if he continued to engage in strikes and protests.
In recent years, immigrants’ rights groups and labor organizations have pushed to expand the scope of U-visa protections. In 2011, Sen. Robert Menendez (D-NJ) and Rep. Judy Chu (D-CA-32) introduced the Protect Our Workers from Exploitation and Retaliation (POWER) Act. The POWER Act would expand the scope of U-visas to protect undocumented workers who have suffered substantial abuse or harm from a serious labor violation, or show that they would suffer extreme hardship if removed from the United States. Such an act would expand the ability of undocumented workers to organize, decrease incentives for employers to rely on workplace raids to avoid compliance with labor and employment laws, and increase the number of workers willing to report their employers to the proper authorities.