Sexual Harassment Claim May Create Path To Visa For Undocumented Worker

Kollman & Saucier
Kollman & Saucier

The U non-immigrant visa is for victims of crimes who have suffered substantial mental or physical abuse and are willing to assist law enforcement and government officials in the investigation or prosecution of the criminal activity.  Congress created the U non-immigrant visa with the passage of the Victims of Trafficking and Violence Protection Act (including the Battered Immigrant Women’s Protection Act) in October 2000.  The legislation was intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of aliens and other crimes, while also protecting victims of crimes who have suffered substantial mental or physical abuse due to the crime and are willing to help law enforcement authorities in the investigation or prosecution of the criminal activity.

Recently, Luvina Hernandez, an undocumented restaurant worker in Boston, won her administrative discrimination case against her employer.  And in addition to finding that Luvina was sexually harassed by the restaurant’s executive chef, the Massachusetts Commission Against Discrimination provided, based on its findings, a certification that allows Luvina to apply for a U visa.  Getting a U visa certification for workplace criminal activity is rare.  If granted, a U visa would allow Luvina to remain in the United States with work authorization for up to four years and offers a path to permanent residence and citizenship.  Family members could also qualify for derivative immigration status.

Not every abusive action by a boss or supervisor will trigger qualification and the issuance of a certification, but abuse that rises to the level of a crime, and is prosecuted, may make a worker eligible for a U visa if the certifying agency is satisfied the other eligibility requirements are met.  In addition to sexual contact or other violence that constitutes criminal activity, other workplace conduct, such as blackmail, obstruction of justice, witness tampering and safety-related violations, could also serve as a basis for a U visa certification.

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