IMMIGRATION ADVOCATES NETWORK

1. IMMIGRATION ADVOCATES NETWORK U Visas after an Enforcement Action: Collaborating with Non-Traditional Law Enforcement Agencies Facilitated by Sonia ParrasKonrad & Gail Pendleton ASISTA Co-Directors www.asistahelp.org

2. Goals Overview of the U Visa process Identify non-traditional partners and their role in assisting immigrant survivors of crimes of violence in the workplace Improving interviewing skills and building unusual partnerships in the context of labor violations Tips for networking and building allies and partnerships to address the comprehensive needs of survivors of crimes

3. U Visa Remedy - Overview Purpose Requirements and eligibility How this remedy assists victims of crimes of violence

4. U Visa - Purpose To strengthen the ability of law enforcement to investigate and prosecute enumerated crimes. To provide humanitarian relief to crime victims and their family members.

5. Requirements for a U Visa • Substantial physical or mental abuse from criminal activity • Possesses information concerning the criminal activity • Law enforcement certification • Is being, has been or is likely to be helpful in the investigation or prosecution

6. U Visa Crime Categories Rape Torture Trafficking Incest Domestic violence Sexual assault Abusive sexual contact Prostitution Sexual exploitation Female genital mutilation Being held hostage Peonage Involuntary servitude Slave trade Kidnapping

7. U Visa Crimes - Continued Abduction Unlawful criminal restraint False imprisonment Blackmail Extortion Manslaughter Murder Felonious assault Witness tampering Obstruction of justice Perjury or attempt, conspiracy, or solicitation, to commit any of the above mentioned crimes

8. Who Can Certify? Police officer Prosecutor Judge Immigration Officer State or Federal Agency Employee

9. Other Federal, State or Local Agencies CREATED BY ASISTA & LEGAL MOMENTUM • Agencies with criminal investigative jurisdiction • In areas of expertise • Including but not limited to: • Child protection services workers • Adult protective services workers • EEOC • Department of Labor

10. Investigation or Prosecution Includes Past, Current or Future Cooperation in: Detection Investigation Prosecution Conviction Sentencing

11. What is Certification? CREATED BY ASISTA & LEGL MOMENTUM • Required part of U-visa application • Signed by the head of agency, OR • Designated supervisor • Any persons in supervisory role • Anticipates multiple designated supervisors • Attach letter designating signer if title lacks “supervisor”

12. What is Certification - Continued • Certification includes that • Victim has has been, is being, likely to be helpful in investigation or prosecution of • Qualifying criminal activity & • Possesses information NOT substantial abuse or whether merits relief (e.g., admissibility issues)

13. Sources of Legal Assistance (Team Support) • National organization that assist with survivors’ needs • NNEVAIW • NNEDV • NCASA, NCADV • Immigration Technical Assistance providers: IAN, ASISTA, NIP, etc. • State • State Domestic Violence / Sexual Assault Coalitions • Justice for Our Neighbors, AFSC, CLINIC, BIA recognized advocates • AILA pro bono, State Bar Association • Local • Nurses, local clinics, shelters & SA projects • Unions

14. Labor Violations Context • Facts: • Immigrant workers are subjected to crimes of violence • Violence intensifies when an employee attempts to assert his/her rights • Undocumented workers are more vulnerable to economic crimes of extortion, peonage, indigent servitude, debt bondage, trafficking, etc.

15. U Visa Crimes in the Employment Context Rape Torture Trafficking Incest Domestic violence Sexual assault Abusive sexual contact Prostitution Sexual exploitation Female genital mutilation Being held hostage Peonage Involuntary servitude Slave trade Kidnapping

16. U Visa Crimes in the Employment Context - Continued Abduction Unlawful criminal restraint False imprisonment Blackmail Extortion Manslaughter Murder Felonious assault Witness tampering Obstruction of justice Perjury or attempt, conspiracy, or solicitation, to commit any of the above mentioned crimes

17. Lessons From Postville

18. Getting the Right Information What? How? Where? From whom? How many times did you ask?

19. Interviewing Skills At the beginning of the interview: • Set clear expectations. • Explain your role and what you will be trying to do. • Give her time to ask questions and paraphrase your explanation/understanding.

20. Screening Questions • Has anyone ever hurt you? • Did you ever tell anyone you were being hurt? • Who did you tell? • Have you ever hurt yourself? If so, how do you hurt yourself and how often? • Have you ever received any help? • How would you say the victimization has affected you? • Closing assessment

21. Raid at the Workplace • Hours • Freedom • Paid for overtime? • Refuse to work? • Did they take any money from your paycheck? • Did you inquire into it? • What happened? • Where you forced to buy papers, change papers to work every so often? • If this happened, did you lose your benefits (seniority, vacation etc) • Where you able to take vacation/earn vacation? • Where you free to leave your job? If so, why didn’t you leave your job?

22. Sexual Harassment/Assault How did your supervisor treat you? Did any supervisor mistreated your peers? How? Did any of it ever happen to you? Did you complain about it to human resources, other supervisors or peers? Did you see supervisors or co-workers flirting with your co-workers, inviting them to go out, calling them names?

23. Sexual Harassment/Assault - Continued Did this happen to you ever? Did you tell anyone about it? Did anyone see it? Did any of your supervisors/co-workers ever ask you out or offer you to go to lunch, call you outside of work, invite you to give you a ride home before or after work? What happened if you said no? (potential punishment/retaliation) Did your supervisor/co-worker ever touch you in an offensive way or in any manner? How many times did it happen? Did anyone see it?

24. Who Do You Talk To? Local / State • OSHA • Civil Rights Division • Workforce Development Office • Attorney General Federal • Department of Justice • EEOC • DOL/Wage and Hour

25. EEOC & U Visa Before and After

26. EEOC U Certification Protocol Request made to Regional Attorney (RA) RA reviews request for qualifying crime that is related to EEOC charges and helpfulness of victim. This will include an interview with the victim. Recommendation to Office of General Counsel (OGC), who reviews the recommendation of the RA and the investigation in the field. Yes No No Decline to certify No Yes Recommendation to Office of the Chair (OCH) for final review. Returned to RA with recommendation to certify and letter authorizing RA to certify Yes

27. Practice Pointers in EEOC Certification • Request should be submitted to the Regional Attorney (RA) through the investigating office. • Start building relations with the investigators and train them on U visas now. • The RA will need to determine that there are qualifying crimes; • provide the RA with the list of qualifying crimes that relates to your client, including elements of the crimes, how the elements are met, and how they are related to the charges under investigation by the EEOC. • The RA will need an in-person interview with the victim and an affidavit based on that interview, as well as credibility determinations by the interviewer. • Survivor must be available for this and is forthcoming during the interview so that s/he is found to be credible. Let her choose.

28. U Visa & Department of Labor What is the Department’s authority to certify U Visas? • (DHS) regulations (8 C.F.R.§ 214.4(a)(2)) expressly list certain federal law enforcement agencies that may certify U Visa applications, including the Department of Labor. How will the Department certify U Visas? • The authority to certify U Visas will be delegated to the Wage and Hour Division.

29. Responding to Congressional Intent -Collaboration and Protection • EEOC, DOL, OSHA, Workforce development state agencies: • The designated staff that will sign the U Visa certification must be the individuals on the ground with first hand knowledge of the crime/s and collaboration. • Staff must be trained on the dynamics of sexual assault in immigrant communities, trauma and victimization in general. • Intakes MUST include the right questions and must be asked by trained staff.

30. National Advocates’ Proposal The implementing regulations provide that “investigation or prosecution refers to the detection or investigation of a qualifying crime or criminal activity….” 8 C.F.R. §214.14 (emphasis added). Accordingly, in addition to issuing certifications to qualifying crimes which are the basis of workers’ complaints, DOL should look for and issue certifications in cases where a qualifying crime is detected in the course of an investigation of the filed complaint.

31. An Unusual Team

32. Make the Connection! • Labor Violations (i.e., wage and hour) • Crime of violence under INA 101 a 15 u • Minor child worked at meat packing plant shifts of 14 hours a day with minimum breaks or no breaks, was not allowed to use the bathroom, employer did not pay all his hours, developed an urine infection from not using the bathroom. • Minor child worked at meat packing plant recruited in his small village by supervisor at the plant, threatened with being reported to immigration if he leaves his job, and being threatened with physical harm if he testifies against the plant in the child labor exploitation law suit.

33. Tips for Success • Build relationships before a crisis hits • Understand different missions • Recognize where goals align • Meet regularly- personal relations • Talk about tensions and work on a compromise • Report on good and bad experiences and cases to help change policies through real stories • Contact ASISTA at Sonia@asistahelp.org or the National Employment Law Project, Rebecca Smith at rsmith@nelp.org

34. New IAN Forum: Victim Protection Via website Gail Pendleton & Christine Popp = moderators Ask any question on Us, Ts or VAWA