5/3/2010

The U.S. Department of Labor (DOL) made an announcement of its intent to begin certifying U visa applications on behalf of victims of certain crimes. This is a major change in the processing of U visa applications. Prior to this change, U visa applications were only certified by traditional law enforcement offices. 

The U visa is meant to encourage foreign nationals who are victims of certain crimes to come forward and cooperate with law enforcement authorities. In order to qualify for a U visa, a law enforcement agency must certify that the foreign national has been the victim of a qualifying crime and has cooperated, is cooperating, or is expected to cooperate with the investigation or prosecution of those responsible for committing the crime. 

Persons who are granted a U visa are entitled to remain in the U.S. for up to four years, may bring certain family members into the United States, and may receive automatic work authorization and a possible path to permanent residency (the green card).

Before an application for a U visa may be filed, a police department, sheriff's department, or other law enforcement agency must complete USCIS Form I-918 Supplement B, with the necessary certifications about the victim of the crime. 

The list of qualifying criminal activity includes abduction, abusive sexual contact, blackmail, domestic violence, extortion, false imprisonment, female genital mutilation, felonious assault, hostage-taking, incest, involuntary servitude, kidnapping, manslaughter, murder, obstruction of justice, peonage, perjury, prostitution, rape, sexual assault, sexual exploitation, slave trade, torture, trafficking, witness tampering, unlawful criminal restraint, and related crimes.

The DOL is listed as one of the law enforcement agencies authorized by U.S. Department of Homeland Security regulation [8 C.F.R.§ 214.4(a)(2)] to certify U visa applications. It is expected that the U visa witnesses will be used to increase the effectiveness of the DOL's existing powers of investigation over U.S. employers and workplace practices. 

Specifically, the DOL may offer U visa protection to foreign nationals who have been trafficked into the United States to work illegally or those who have been abused or exploited by employers who have not complied with employment and labor laws. If an employee (current or former) is threatened by the employer with repercussions if s/he cooperates with a government investigation, or told not to answer questions about the employment, these actions potentially could be deemed as crimes of witness tampering or obstruction of justice. This may lead to qualification for U visa protection for such an individual.