A New Understanding of Substantial Abuse:
Evaluating Harm in U-Visa Petitions for Immigrant Victims of Workplace Crime
By Eunice Hyunhye Cho, Giselle A. Hass, & Leticia M. Saucedo
UC Davis Legal Studies Research Paper Series
Research Paper No. 439
August 2015
This article examines the legal concept of "substantial physical or mental abuse" suffered by immigrant victims of crime in the workplace, and how it relates to the ability to qualify for a U visa.
Immigrant workers face higher risks of abuse and exploitation in the workplace and may fear retaliation if they come forward to report exploitation and abuse which can include:
Workplace abuse
Unfair wages/ low wages
Refuse to pay wages
Lack of work benefits
Forced labor, forced overtime with no pay, working off the clock
Workplace bullying
Workplace aggression
Sexual assault, rape, sexual harassment
Physical assault
Coercion
Threats to report to immigration, threat to deport, threat to fire
Blackmail
Extortion
Exploitation, forced servitude
Tampering with evidence, obstruction of justice
Humiliation, denigration
Lack of recognition of abilities, skills, talents, and qualifications
Given lesser-valued job assignments
Lack of opportunities for advancement
Gender discrimination, sexual orientation discrimination
Emasculation due to lack of legal status
Isolation from family and friends
Intimidation with threats, coercion, manipulation, and verbal abuse
Fraud in labor contracting
Eviction
Seizure of identity documents
Restriction on movement
Control of financial accounts and wage payments
In recent years, law enforcement agencies have increasingly viewed U non-immigrant status as a helpful tool to strengthen enforcement of labor standards and civil rights protections. However, confusion has grown around the concept of "substantial physical or mental abuse" in the context of workplace abuse.
Immigrant workers experience high rates of basic labor law violations, including sexual violence against immigrant women workers and working off-the-clock without any pay. They are also more susceptible to dangerous work conditions.
Federal and state labor rights enforcement agencies have begun to certify U visa applications for immigrant victims of workplace-based criminal activity. The U visa increases workers' trust in labor and civil rights law enforcement agencies and allows them to access employment remedies.
U visa recipients receive lawful status for up to four years and may receive derivative visas for dependents.
In order to qualify for a U visa, an immigrant worker must have been a victim of a qualifying criminal activity, have information concerning the qualifying criminal activity, and have suffered substantial physical or mental abuse.
U Visa Qualifying Crimes in the Workplace
Twenty-eight qualifying criminal activities trigger eligibility under U visa statutory provisions, including domestic violence, sexual assault, blackmail, extortion, felonious assault, fraud in foreign labor contracting, involuntary servitude, peonage and trafficking, and perjury.
A U visa petitioner must obtain certification from a law enforcement agency, prosecutor, judge, or other government official that the petitioner is a victim of a qualifying criminal activity and has been helpful in detecting, investigating, or prosecuting that crime.
After a law enforcement agency has certified a victim's helpfulness in detecting, investigating, or prosecuting a crime, the U.S. Citizenship and Immigration Services must approve or deny a U visa application based on evidence of substantial physical or mental abuse.
The agency regulations provide guidance on the cumulative effects of factors such as the nature of the injury inflicted and the severity of the harm suffered.
A series of acts taken together may constitute substantial abuse even where no single act alone rises to that level. When Congress created the U visa program, the term "substantial physical or mental abuse" had never been used in the immigration context. The Department of Homeland Security had to interpret the term's meaning for the first time. This rule defines physical or mental abuse as harm to the victim's physical person or impairment of the emotional or psychological soundness of the victim. It uses the terms "battery" and "extreme cruelty" interchangeably with the term "abuse".
Workplace aggression includes glares, verbal threats, deception, manipulation, coercion, sexual contact, and physical assaults. Research confirms negative psychological and physical consequences for victims who suffer different forms of violence in the workplace.
Workplace aggression causes negative consequences for victims' mental health, including depression, post-traumatic stress disorder, panic disorder, and other emotional harm. Victims of workplace abuse also suffer from persistent pain and psychological harm caused by the abuse itself.
Workplace bullying is a gradual process wherein an individual is subjected to indirect and subtle forms of psychological violence in a systematic way and over a prolonged period of time. Bullying includes work-related behaviors such as unreasonable deadlines, unmanageable workload, excessive monitoring, withholding of crucial information, sabotage, work devaluation, as well as interpersonal behaviors such as gossip, insulting remarks, scolding, threats, excessive teasing, social exclusion, and persistent criticism.
A key component is the imbalance of power in the relationship and the victim’s limitations to defend him or herself.
Research indicates that victims of workplace bullying, violence, and abuse experience negative physical and psychological consequences, including headaches, neck, back, and stomach pain, sleep disturbances, heart-related health issues, and miscarriage.
Workplace abuse can lead to mental health problems such as depression and post-traumatic stress disorder. Workplace bullying can cause trauma similar to trauma of other abuse such as domestic violence and even mild forms of torture.
Victims of workplace abuse report higher levels of general stress and lower levels of general psychological health, as well as lower satisfaction in life due to high levels of negative emotions and mood, anger, and anxiety.
Victimization and exploitation at work affects not only direct victims, but also co-workers who witness the victimization of their peers and thus fear for their own safety and well-being. This secondary trauma (also called vicarious or bystander traumatization) is well-established. The emotional consequences of exposure to victimization of others are similar to those suffered by direct victims. Workers often report extreme distress after witnessing traumatic events to the same degree as if they had been the direct victim. The U visa regulations contemplate bystander or indirect victimization and have incorporated these types of emotional consequences into the definition of victimhood.
Traumatic stress resulting from interpersonal abuse in the workplace may present with culturally specific patterns of distress and symptoms, and may not correspond to a known mental health disorder diagnosis. Immigrant victims may respond to a traumatic situation with culturally specific patterns of distress and symptoms. For instance, somatic symptoms have been documented to be idioms of distress in some ethnic groups. Panic disorder and a high prevalence of alcohol use have also been found to correlate with trauma in certain ethnic groups.
U visa regulations require a fact-specific analysis of the severity of harm experienced by a victim of crime, including consideration of the victim's pre-existing conditions. Several factors affect the severity of psychological injury suffered by victims of criminal activity, including the victim's individual emotional makeup, prior experiences of trauma, and the ability to engage in healthy coping strategies. Immigrant workers face significant barriers to successfully confronting workplace abuse.
Immigrants who come from war-torn, poverty-stricken, high crime-rate or natural disaster-devastated nations are likely to have experienced traumatic events in their past, which can lead to psychological fragility and exacerbate the psychological harm from workplace abuse.
Cumulative traumas may lead to maladaptive adjustments, which put a victim at greater risk of suffering from greater mental health consequences resulting from an abusive episode or chronic abuse.
A natural initial reaction to abuse and victimization is to fight back with active coping strategies, but indirect strategies increase the relationship between workplace abuse and resulting psychological harm.
Immigrant victims of workplace abuse are often unable to leave their jobs, resulting in significant and cumulative negative psychological consequences. These victims often learn to submit and comply in order to survive, becoming depressed, helpless, and emotionally numb. Immigrant victims of workplace criminal activity may, by necessity, choose to engage in passive coping strategies out of fear that engaging in active strategies may lead to loss of a job, exposure to law enforcement, hardship to their family members in the United States or in their country of origin, or detention and deportation. This inability to leave a job results in prolonged and repeated exposure to abuse, associated with more severe psychological harm. Victims of abuse in the workplace who are economically dependent on abusive employers and lack job mobility often suffer greater psychological harm than those who can more easily leave a job.
Several factors increase the likelihood that an immigrant worker will need to rely on unhealthy coping strategies, including economic dependency, lack of work authorization, and power differentials.
Low-wage immigrant workers are particularly vulnerable to workplace abuse because of their high level of economic dependence on an employer, and because they may have incurred significant debt to travel to the U.S. Immigrant workers whose work visas are specifically tied to a particular employer face additional vulnerabilities. Economic pressures can lead workers to acquiesce to extremely long overtime hours or to work when sick or injured. For these workers, avoiding workplace abuse is an impossible choice in the face of homelessness, hunger, and failure to meet family responsibilities. Inability to leave an abusive employment also results in prolonged and frequent exposure to abuse associated with an increased severity of psychological harm.
Lack of Work Authorization or Legal Immigration Status
Immigrant workers who lack work authorization, legal immigration status, or whose legal status is wholly dependent on their relationship with their employers face particular vulnerability to abuse. An abusive employer may use a worker's legal status as a means of control by threatening to terminate employment—which implicates more dire consequences for undocumented workers who cannot easily replace employment; or contact immigration authorities if a worker reports abuse. An abusive employer or supervisor may feel safe in the knowledge that an undocumented worker will not bring charges or report abuse or criminal activity out of fear of loss of status, deportation, or unemployment. Even where abuse has been reported and is being investigated, an employer or supervisor could threaten deportation for cooperation with authorities, exploiting the worst fears of the immigrant worker.
Power Differentials Between Employer and Employee
Undocumented immigrants and guest workers are likely to be in employment relationships with heightened power differentials between workers and management. These power differentials can be exploited by abusive supervisors and employers, leading to diminished sense of personal value and diminished ability to cope with workplace abuse.
Although power disparities underscore most employer-employee relationships, immigrant workers face additional status differences based on legal status, race or ethnicity, mastery of English language, and acculturation. Immigrant workers may also adhere to employment structures and cultural values that require greater deference to superiors and elders. For Example, immigrant women workers may feel required to defer to men. These cultural values can be exploited by abusive supervisors and employers, some will use power dynamics to further overt abuse, while others engage in overly friendly and paternalistic behavior to advance their own exploitative agendas.
Immigrant workers in the U.S. often feel forced to accept jobs of lower status than in their native countries. In such situations, a worker may suffer from loss of identity and status, leading to a diminished sense of personal value, an additional obstacle to constructively responding to workplace abuse. These power differentials lead immigrant workers to conclude that they lack sufficient status and leverage to remedy abusive conditions. Indeed, research has found that workers with less perceived power in the workplace or who conclude that their actions would not result in change may experience more significant psychological harm.
Lack of language proficiency or illiteracy limits a worker's ability to understand critical documents related to workplace conditions, such as contracts, rights, guidelines, pay, and benefits. This can lead to increased isolation and a sense of depression and hopelessness for victims of abuse.
Gender, Gender Identity, or Sexual Orientation
Women are often subject to overt discrimination in male-dominated work environments, including lesser-valued job assignments, lack of opportunities for advancement, receiving lower pay, and subjection to sexual harassment, sexual assault, and rape.
Victims of sexual harassment or sexual assault, moreover, are often deterred from taking active steps to remedy the situation due to fear of losing social status, damage to reputation, and personal retribution. Unscrupulous employers or superiors may require sexual favors and submission to sexual behaviors as a condition of employment or job related opportunities. For a female immigrant worker, sexual slurs or innuendos carry additional consequences of subordination because, by virtue of her status and the possibility of deportation or threats to her citizenship status, she cannot complain as forcefully as a native-born worker.
Lesbian, gay, bisexual and transgender workers are particularly vulnerable to abuse in the workplace, and may even contribute to it in an attempt to regain a sense of personal control. Lesbian, gay, bisexual and transgender (LGBT) workers are particularly vulnerable to jokes, slurs, ridicule, discrimination, and other more abusive or assaultive behavior in the workplace. Workers who wish to keep their sexual orientation or gender identity a private matter, especially if their cultural values make this issue taboo, will tolerate abuse or force themselves to play out traditional gender roles in order to protect themselves. Individuals who are persistently harassed and mistreated and whose behavioral freedom is restricted may engage in cognitive adjustment and minimize or deny the impact of the abuse, and may even contribute to it, in an attempt to regain a sense of personal control
Immigrant men suffer from gendered forms of workplace abuse in addition to sexual harassment. They are forced into subservient, complacent and differential roles, identities stereotypically gendered as female when employers take advantage of their relatively “weak citizenship status”. Moreover, by virtue of their immigration status, immigrant men in a department where women are being harassed will not perceive that they have the ability to speak out against such harassment to assume the role of protector, which is a role that is culturally valued in most ethnic groups. The risks and consequences are much more severe than simply retaliation, as these men remain quiet due to veiled or explicit threats of deportation. Not only do immigrant male workers view themselves as emasculated in their inability to rectify sexual harassment against their female co-workers, this disempowerment also occurs by reference to their immigration status.
Isolation
Isolation, whether social, geographic, linguistic, or social, correlates with the presence of abuse as well as heightened mental health consequences for the victim of abuse. Immigrant workers in geographically isolated areas lack access to support systems, including other more acculturated immigrant communities.
Often, immigrant family bonds are disrupted in the process of migration, which reduces social support and increases vulnerability to workplace abuse.
Lack of Knowledge of or Ability to Exercise Legal Rights
Many immigrant workers lack knowledge regarding their rights as employees, and many do not seek to enforce their rights out of fear of retaliation or lack of effective advocacy measures. In some cases, immigrant workers from countries where human rights are routinely violated may believe that abusive working conditions are the “normal state” of affairs. Even where workers are aware that abusive working conditions violate the law, they do not seek to enforce such rights out of fear of retaliation or because of lack of effective advocacy measures.
The Unique Role of Employer Threats and Retaliation in Workplace Abuse
Threats made by an employer to a worker may meet an element of several U visa-qualifying crimes, including witness tampering, obstruction of justice, blackmail, extortion, involuntary servitude, and trafficking. For example, an employer's threats to deport, fire, evict, report to law enforcement, or physically harm a worker or a worker’s family member to induce a worker to refrain from participation in a law enforcement investigation or bringing charges may constitute witness tampering or obstruction of justice. Likewise, such threats made by an employer to obtain property of value or services from a worker constitute extortion or blackmail. Threats, implicit or explicit, of force, physical restraint, serious harm, abuse of legal process, constitute involuntary servitude or trafficking.
Employers may hire immigrant workers because they consider them complacent and subservient, and therefore more willing to accept employer control. As one study found, employers explicitly referred to their preference for undocumented immigrants because of workers’ lack of work authorization. This preference can surface, often subtly, in how an employer signals to an employee that he seeks compliance and submissiveness.
Employers are also highly likely to retaliate against immigrant workers who seek to exercise their labor rights. Workers threatened by employers may experience significant mental distress, and may be particularly vulnerable to aggravation of underlying chronic stress or trauma caused by long-term abuse.
The U visa provisions include obstruction of justice, witness tampering, and perjury as enumerated qualifying criminal activities. However, the agency noted that individuals may demonstrate that they have been directly or proximately harmed by a perpetrator's obstruction of justice, witness tampering, or perjury.
Employers may try to thwart an investigation by labor or civil rights law enforcement agencies by threatening workers with deportation, blacklisting, and refusal to rehire. The federal criminal code includes several examples of obstruction of justice, witness tampering and perjury that encompass retaliatory activity by employers. These examples include intimidation, threats, corrupt persuasion, or misleading conduct with the intent to cause a person to withhold testimony or records.
Employers who perjure or obstruct the justice system or report immigration status of workers in retaliation for exercising labor rights are violating the Fair Labor Standards Act, Title VII of the Civil Rights Act, and the National Labor Relations Act. The National Labor Relations Board has repeatedly concluded that an employer’s threats to investigate immigration status in retaliation for a worker’s exercise of labor rights constitute an unfair labor practice in violation of Section 8(a)(1) of the NRLA. Federal courts have also concluded that inquiries into immigration status, including completion of I-9 forms, in the midst of Title VII discrimination litigation, constitute retaliation.
Employers that intimidate workers with threats, coercion, manipulation, and verbal abuse can inflict substantial harm on workers, including diminished sense of self-worth, anxiety, depression, and post-traumatic disorders.
Extortion is the wrongful use of force, violence or fear to obtain something of value from another person, and blackmail is the threat to reveal information (regardless of veracity) unless a demand is met.
Employers commit extortion or blackmail of their workers when threatening violence or other action to obtain a worker's property, including unpaid wages. Given undocumented immigrants’ reluctance to interact with police due to fear of deportation, this group is particularly vulnerable to extortion.
The harm suffered by victims of extortion and blackmail is not merely financial. Immigrant victims of extortion and blackmail may suffer significant distress and fear as a result of an employer's threats, including threats to fire them or report their immigration status to law enforcement officials. These threats can lead to long-term consequences, including substance abuse, isolation and withdrawal, eating and sleeping disorders.
Perpetrators of blackmail and extortion often use private information to maintain control over a victim in specifically humiliating and stressful ways. An employer may threaten to report to immigration authorities, use knowledge about the worker’s past to ruin his or her reputation, or use other intimate knowledge to shape threats to ensure compliance. Such threats raise the cost of resistance beyond that of self-capitulation, leading to anxiety, depression, mental confusion, self-doubts, guilt, and shame.
Fraud in Foreign Labor Contracting
In 2013, Congress added fraud in foreign labor contracting to the list of U visa qualifying crimes. Employers may commit fraud in foreign labor contracting by providing false representations about terms and conditions of employment, housing, fees to labor brokers, food and transportation, and other material aspects of the work arrangement when bringing workers to the United States.
Immigrant workers who are manipulated into migrating to the United States for work opportunities that do not materialize or lead to abuse and exploitation, often suffer from significant distress, including sub-minimum wages, decrepit housing conditions, and other workplace violations. Victims who internalize the responsibility for falling prey to fraud blame themselves for their own ambition and their failure to resist or recognize lies, fraud, and manipulation by an employer, supervisor or contractor. Victims of fraud in foreign labor contracting may develop a belief that their own instincts cannot be trusted anymore and that their decision-making is irreparably flawed, leading to further destructive decisions and behaviors. Victims of fraud in foreign labor contracting typically suffer from devastation to their identity, sense of self-efficacy, and sense of self-worth.
Trafficking, Involuntary Servitude, and Peonage
The Trafficking Victims Protection Act of 2000 (TVPA) provides a comprehensive framework to address serious forms of trafficking, including recruitment, harboring, transportation, provision, or obtaining a person for labor or services.
The TVPA's definition of coercion includes physical force, psychological abuse, serious harm or physical restraint, serious harm, and abuse or threatened abuse of the legal process. It also requires consideration of a victim's individual circumstances when determining whether a particular type or certain degree of harm is sufficient.
Several court decisions have discussed threats, intimidation, eviction, seizure of identity documents, underpayment of wages, physical assault, restriction on movement and isolation from family and friends, and control of financial accounts and wage payments. Even when facts surrounding trafficking victimization do not include the fraud, force, or coercion required of “severe forms of trafficking” under the TVPA, a trafficking victim can still make a claim based on a state definition of trafficking.
Labor trafficking victims suffer physical and psychological harm, including loss of sense of identity, sense of self, and treatment as a commodity, which contributes to depression, feelings of hopelessness, helplessness, and loss of will.
Felonious Assault
Assault occurs when a person intentionally attempts to injure another person, or when a threatening gesture is made with the ability and intent to commit battery. Immigrant workers may become victims of felonious assault in the workplace.
Physical assault and abuse in the employment setting can produce or trigger traumatic stress and fear, which can lead to severe mental distress and impairment in a victim's daily social, working life and personal adjustment. Employers sometimes subject workers to psychological assaults designed to force submission, resulting in workers’ loss of sense of personal efficacy and control necessary for good mental and physical health. Trafficked workers are subject to isolation, indoctrination, physical impairment and exhaustion, which decrease resistance by workers and increase vulnerability to further exploitation. Loss of identity, sense of self, and treatment as a commodity lead victims to view themselves as dispensable property, contributing to depression, feelings of hopelessness, helplessness, and loss of will. Victims may suffer from a deeply altered frame of reference for understanding the world, lose a sense of themselves as people, and lack the ability to trust others, leaving them physically, emotionally, and spiritually shattered.
Physical assault and physical abuse in the employment setting, even when mild, can produce or trigger traumatic stress and fear. Whether it is repetitive, intermittent, or infrequent, physical assault is a powerful tool of control and intimidation used to ensure compliance and submission. In addition to intense fear and anxiety about personal bodily integrity, victims also suffer from psychological disturbances that can rise to the level of post-traumatic stress, as well as increased expectations of continued abuse, fears that violence will increase in lethality, a perceived lack of safety and security, and a view of interpersonal relationships as dangerous. These cognitive and emotional changes may cause severe mental distress and impairment in a victim’s daily social, working life and personal adjustment
Sex Crimes
Undocumented immigrants, immigrant workers without authorization to work, and guest workers are particularly vulnerable as victims of sex crimes in the workplace by employers, supervisors, co-workers, and clients. Uvisa qualifying activities include abusive sexual contact, rape, and sexual assault.
18 U.S.C. 2244(b) defines abusive sexual contact as knowingly engaging in sexual contact with another person without that other person's permission, while sexual assault is the commission of a sexual act upon another person with the knowledge that the other is asleep, unconscious, unaware, or incapable of consent. Rape is generally defined as the commission of a sexual act upon another person through use of unlawful force, or through threats of death, bodily harm, kidnapping; or sexual acts committed after rendering the other person unconscious or substantially impaired with a drug, intoxicant, or other substance.
Sexual assault can have negative and pervasive effects on victims, including intense fear of death and dissociation, feelings of low self-esteem, self-blame and guilt. Suicidal ideation is more common among victims/survivors of sexual assault than the general population. Sexual abuse of one worker can create a ripple effect to the rest of the workforce, and can be combined with favoritism, further confusing the victim psychologically and also his or her coworkers. A sexualized environment in the workplace is psychologically damaging even when not one worker was specifically sexually abused or exploited because it creates the conditions in which a person habituates to having their boundaries violated and insidiously chip away the will to resist other abuses.
Stress and trauma can have a significant impact on the victim's ability to return to a normal level of both physical and emotional equilibrium. Individuals with inadequate internal and external resources may succumb to a 'loss spiral', where the depletion of resources caused by one stressful experience leads to additional stresses and further loss of coping ability.
Traumatic stress can be caused by an employer's action and pre-existing vulnerabilities and aggravating factors. A person can suffer from traumatic stress even where the traumatic event is not catastrophic.
Different types of traumas have different effects on an individual given his or her history. Chronic trauma consists of multiple events that accumulate over time and that combine with a prolonged toxic environment that multiplies the psychological harm.
High levels of work-related stress lead to burnout, which can be exacerbated by negative working conditions, pressure to perform, task repetition, lack of opportunities to advance at work, and an inability to enjoy free time in a normal manner.
Individuals cope with intense workplace stress differently depending on their appraisal of the source of the stress. Victims who perceive the manager or organization as the source of stress cope better than those who perceive themselves as deserving of the stress.
CONCLUSION
This article has described how criminal activities committed in the workplace may cause substantial harm to immigrant worker victims, and how the substantial abuse standard for U visa qualifying criminal activities must consider the unique dynamics of an employer's actions on immigrant worker victims. This article has provided a framework to understand such harm from the perspective of the U visa substantial abuse requirements.
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