Trafficking Victims to Benefit from DOL’s New Policy

By Reuben S. Seguritan

April 08, 2015

On April 2, 2015, the Wage and Hour Division (WHD) of the Department of Labor (DOL) started exercising its authority to issue certifications for T visa applications. It can now also certify three additional qualifying criminal activities under the U visa program, namely, extortion, forced labor, and fraud in foreign labor contracting.

U nonimmigrant visas are available to victims of “qualifying criminal activities” who suffered substantial mental or physical abuse such as abduction, blackmail, domestic violence, extortion, involuntary servitude, witness tampering, obstruction of justice, perjury and false imprisonment, among others. T nonimmigrant visas, on the other hand, are available to certain victims of human trafficking. Quite a number of Filipino domestics, teachers, and temporary workers have been issued T and U visas.

Under both the T and U visa programs, the victim must have been helpful, are being helpful or are likely to be helpful in the investigation and prosecution of the crime. Application for U visa requires a law enforcement certification on Form I-918B. Although the T visa does not require law enforcement certification, it is given a significant weight as evidence that the applicant assisted the law enforcement agency.

Among those who may sign the Form I-918B are certifying officials of federal, state, local law enforcement agencies, prosecutors, judges and other investigative agencies such as family protective services, the Equal Employment Opportunity Commission, and the Wage and Hour Division of the Department of Labor.

The DOL’s Wage and Hour Division began issuing U visa certifications in 2011 for five qualifying criminal activities, namely, trafficking, involuntary servitude, peonage, obstruction of justice, and witness tampering. The three qualifying criminal activities were added to the list because the DOL found that these activities are also likely to be exposed during the WHD’s workplace investigations.

The Wage and Hour Division enforces workplace laws such as the federal minimum wage and overtime laws. Many wage and hour investigations, according to the DOL, are conducted in industries where vulnerable workers are employed. This allows the WHD to reach these workers and detect exploitation.

The primary factors that the WHD considers in issuing a certification are the following: that 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 WHD enforces, that the petitioner alleges a qualifying criminal activity and 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.

The fact that 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 is also considered. Another factor is whether completion of the U visa certification would assist the DOL’s investigation of a violation of a law that it enforces.

The certified Form I-918 Supplement B must be attached to the Form I-918 petition and filed with the U.S. Citizenship and Immigration Services (USCIS). The law enforcement certification does not guarantee that the applicant will be issued a U visa. The applicant must still demonstrate that he/she meets all the eligibility requirements for a U visa.

If the WHD decides not to certify the Form I-918B, they will inform the applicant in writing and will also provide information as to other law enforcement agencies that may be able to issue the certification.

Through these efforts the DOL seeks to provide additional support to workers who are victims of these crimes and are willing cooperate with law enforcement. The DOL sees this as significant way of providing qualifying victims the services they need to rebuild their lives.