What Are the Potential Immigration Remedies?
Immigration is an issue that many farmworker clients confront. Securing immigration relief has a profound impact on your clients and their families. With documented status, individuals may be able to access additional services, benefits, and legal remedies. In addition, victims may be able to reunite with their family, potentially secure improved employment and be free from the fear of deportation.
However, immigration law is incredibly complex and ever-changing. It should not be undertaken lightly and without experience. The potential consequence of a mishandled case is dire–your client’s deportation. Filing an immigration application or claim notifies the U.S. Government that your client is in the country without status and provides the client’s exact location. On its face, deportation is the removal of the client from the country. What this may mean to your client is separation from any U.S. citizen children and other family members in the U.S. It may also cause a victim’s family here and abroad to lose its sole financial support.
It is important for you to consider being involved in every aspect of your client’s case, from the civil litigation to advocacy through the criminal prosecution of the perpetrator to any immigration relief that your clients are eligible to receive. This reduces the number of people with whom your clients works, which may be easier for victims emotionally and logistically. Consider whether you will handle the immigration component, co-counsel the immigration case, or refer to a qualified attorney.
We encourage you to cultivate general knowledge of the types of immigration remedies available to your clients so that you know when to make appropriate referrals to immigration attorneys. Here are some of the most common remedies and a brief description of each:
- The U Visa is for noncitizen victims of certain, designated crimes, including but not limited to rape, sexual assault, abusive sexual contact, sexual exploitation, trafficking and domestic violence. The applicant must have suffered substantial physical or mental abuse as a result of a crime in the United States, possess information about the crime and be helpful to law enforcement. A federal, state or local government official investigating or prosecuting the crime must complete a certification form regarding the crime and helpfulness of the victim. Note that the U.S. Equal Employment Opportunity Commission (EEOC) may complete the certification.
The applications are adjudicated by the U.S. Citizenship and Immigration Services. The U Visa’s duration is four years and provides for work authorization. After the third year in possession of the U Visa, the U Visaholder is eligible to apply for legal permanent residence. See 8 U.S.C. section 1513 (2008). You should note that:
- “Has been helpful” refers to victims who assisted in an investigation or prosecution that is now closed; there is no time limitation on providing a certification for closed cases;
- Law enforcement agencies nationwide are consistently determining “helpful” to have broad meaning, including reporting a crime and answering first responders’ questions;
- The certification is one small but important part of an extensive application that the victim completes and submits. A victim must also meet other eligibility criteria, pass a fingerprint and immigration records check and qualify for a waiver of any immigration violations; and
- Victims cannot submit a U Visa application without the accompanying law enforcement certification; thus, law enforcement plays a critical role.
- The T Visa is for noncitizen victims of human trafficking, which generally is forced labor, forced prostitution or prostitution of someone under 18 years of age. An applicant must also have complied with reasonable requests in the investigation or prosecution of the trafficking, be present in the United States on account of the trafficking and would suffer extreme hardship if removed from the United States. Federal, state or local law enforcement must complete a certification form regarding the crime and the victim’s compliance with reasonable requests. The T Visa’s duration is three years and provides for work authorization and public benefits after which time the T Visaholder may apply for legal permanent residence. See 22. U.S.C. sections 7101 – 7102 (2008). You should note that:
- Compliance with “reasonable” requests depends on the totality of the circumstances, such as general law enforcement practices and the victim’s fear, maturity and extent of trauma suffered;
- Victims are eligible based on compliance with reasonable requests in the investigation OR prosecution; therefore, a full prosecution is not required. A certification is appropriate even in cases where an investigation is conducted and the trafficker accepts a plea bargain or if there is insufficient evidence to warrant a prosecution.
- Similar to the U Visa, the certification is just one part of an application that requires the victim to submit extensive corroborating evidence. A victim must also meet other eligibility criteria, pass a fingerprint and immigration records check and qualify for a waiver of any immigration violations; and
- Victims may submit applications without a signed law enforcement certification provided they submit other forms of proof of compliance with reasonable requests for assistance from law enforcement, though your assistance makes the process easier for victims.
Obtaining U Visa and T Visa certifications can be challenging. Educate the investigating and/or prosecuting agency about the applications, advocate for your client and be persistent.
- An S Visa is available to noncitizens who have knowledge of criminal activity, are assisting law enforcement with the investigation or prosecution and whose presence in the U.S. is necessary for the case. Unlike the other options presented here, the individual does not apply for this visa; a law enforcement agency applies for it on behalf of the individual.
- To qualify for asylum, a person must have been subjected to or fears being subject to persecution based on race, religion, nationality, political opinion or membership in a particular social group in their country of origin. Note that the basis for the application is therefore not the sexual violence that has occurred here in the United States. Asylees receive legal permanent residence, work authorization and refugee benefits.
- The VAWA Self-Petition is available to battered immigrant spouses and children of U.S. citizens and lawful permanent residents. It steps in to provide the immigration status the petitioner would have received but for the spouse or parent’s abuse and control over the immigration process. Petitioners are eligible to receive public benefits and work authorization and may apply for legal permanent residence.
- Special Immigrant Juvenile Status is available to anyone under 21 who has been declared eligible for long-term foster care and who cannot return to their country of origin. Successful applicants receive legal permanent residence and a host of public benefits and care.
- Family-based immigration may also be an option if the client is an immediate relative of a U.S. citizen, including spouse, child or parent, who is willing to file a Petition for Alien Relative.
Your immigrant farmworker clients may also have general questions about immigration law and may want to know how reporting or taking action against the perpetrator may affect their immigration status. Generally, the answer will be that reporting or pursuing claims related to sexual assault will not negatively affect a victim’s ability to remain in this country or to obtain improved immigration status. However, clients should be advised on a case-by-case basis regarding risks. (The American Immigration Lawyers Association provides an immigration lawyer search online at www.ailalawyer.com or by calling 1-800-954-0254. The National Network to End Violence Against Immigrant Women also provides referrals through http://www.immigrantwomennetwork.org. Additionally, check with your state and local bar associations.) Please be aware that only licensed U.S. attorneys or accredited representatives are trained and authorized to represent clients in immigration matters. Beware of immigration “consultants” or “notarios” who often simply complete immigration paperwork for a fee. They may not be licensed attorneys and they may not have knowledge of all of the deportation triggers or legal requirements of the application.
- What more do I need to learn to handle a farmworker immigration petition?
- What basic immigration training is available to me?
- How are local law enforcement agencies handling U Visa and T Visa applications?
- Do I have trusted, affordable immigration attorney referrals in place?
- Do I have trusted, affordable accredited representative referrals in place?