Human trafficking is the use of force, fraud, or coercion to compel a person to engage in labor or commercial sex acts against their will. Employers use violence, manipulation, or false promises of good jobs or other benefits to dupe or force victims into agricultural, domestic, factory, or sex work, at little or no pay. Although accurate statistics are impossible to come by, in 2020 over 16,000 victims of trafficking were identified by a human trafficking hotline, and many times that number experience exploitation and do not reach out for help.
In 2000 Congress passed the Victims of Trafficking and Violence Protection Act, establishing a process for immigrants without permanent status to apply for a form of nonimmigrant status based on showing that they were a victim of “a severe form of trafficking in persons.” The T visa process offers significant protection and advantages to immigrant victims of trafficking, yet it remains a very underused resource. It is important to understand that immigrants experiencing many kinds of exploitation may be eligible for this benefit, not just those that are brought into the U.S. by trafficking rings. In fact, it is not necessary to show that the applicant was brought into the U.S. by the employer, or that the person was physically held against their will. The key is showing exploitation through fraud, coercion, or threats. In this and subsequent blog posts, we will draw from real-life stories to describe both labor and commercial sex trafficking cases, and discuss how cases are prepared for submission to USCIS to maximize the client’s chance of success.
Work Visa Abuse
Certain work visas prohibit an employee from changing employers, which may put the worker at risk of exploitation and abuse. This lack of “portability” of the visa status means that workers who are denied basic workplace protections would lose their legal status and face possible deportation if they leave their abusive employer. Employers know the vulnerability that this imbalanced power dynamic creates, and some take advantage to intimidate, control and exploit the worker in situations amounting to involuntary servitude or debt bondage. For instance, some personal employees and domestic workers of foreign government officials and diplomats in the U.S. holding A-3 visas have been deceived and exploited by their employers, who have diplomatic immunity and cannot be prosecuted in U.S. courts. Though the law requires that employment contracts for these workers provide a fair wage and proper working conditions, some are underpaid, abused, and even virtually imprisoned by employers who may take their passports and threaten them and their families. In some cases, these abuses may constitute trafficking as defined under relevant law.
Severe abuse and exploitation of immigrant workers has long plagued the H-2A visa program for temporary agricultural workers. In a recent case, federal charges were brought against onion farmers in Georgia who sold and traded their H-2A employees, forced them to dig for onions with their bare hands, and threatened them at gunpoint. Federal prosecutors alleged that the employers engaged in kidnapping and rape, and threatened workers’ family members with violence and death. Landscaping workers on H-2B visas, many recruited through fraudulent job offers or other false promises, are also vulnerable to abuse and exploitation amounting to human trafficking. In one case a recruiter attracted workers in Guatemala with the promise of $14 per hour pay for 45 hours a week at a landscaping company. Workers went into debt to pay the visa and travel costs, but in the U.S. they were made to work 12 hours per day, seven days per week for $8 hourly. They lived in a crowded, filthy apartment owned by the employer, who charged them rent and also charged them to use an old van to get to and from work. When a worker complained about the low wage and unpaid hours of work the employer threatened to call ICE.
Exploitation involving all types of temporary workers, including H-1B and J-1 visa holders, is unfortunately common. Many people will not see themselves as “victims of trafficking,” so we take a work history and analyze the facts to determine if there is evidence that the employer recruited, hired or kept the person on the job through the use of force, fraud, or coercion. Red flags include situations in which the worker feels unsafe at work, owes a debt to the employer, was injured at work but the employer refused to pay for needed medical treatment, and where the employer has threatened to call ICE in order to get the worker to do something. If there is such evidence of human trafficking, we work with the client to develop and submit a strong T visa application to USCIS. In the next post, we will discuss how we build a T visa case.