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Relief for Guestworkers: Employer Perjury as a Qualifying Crime for U Visa Petitions

Introduction I. The Federal Guestwork Program A. The Guestworker Program 1. Employer Attestations Under Penalty of Perjury a. ETA Form 9142 b. ETA Form 9142: Appendices A and B c. 1-9 and 1-129, Petitions for a Non-Immigrant Worker 2. Further Regulatory Requirements B. Applicable Federal Perjury and Fraud Law 1. Common Elements of Perjury a. Materiality b. State of Mind Requirement C. Fraud in Foreign Labor Contracting D. Obstruction of Justice II. The Reality of Guestworker Abuses A. Fraudulent and Coercive Recruitment B. Wage and Hour Violations C. Safety Conditions D. Living Conditions E. Intimidation and Retaliation III. The U Visa Solution A. U Visas 1. Qualifying for a U Visa a. Substantial Physical or Mental Harm b. Providing Credible Information c. Certifying the Victim's Helpfulness d. Activity Within the United States B. The Potential Impact of U Visas: A Viable Solution 1. The U Visa Application and Benefits Conclusion INTRODUCTION Migrant workers in the federal guestworker program make up an important part of the United States workforce and economy. The Department of State granted over 115,000 H-2 guestworker visas during the 2012 fiscal year. (1) These workers often enter into debt with predatory lenders in their home countries in order to pay illegal recruitment fees and travel costs, and leave their families behind to come to work in the United States. (2) Guestworkers are also frequently victims of false or misleading statements about the job opportunities awaiting them and are subject to workplace threats and mistreatment upon arrival. (3) The guestworker program ties a foreign worker to a single United States employer and prevents the worker from changing jobs or rejecting employer demands without losing his or her legal status in the United States. If a worker has a complaint, he or she is at risk of being fired and having to return to his or her home country. (4) Consequently, legal challenges against guestworker employers have been hampered by guestworkers' fears of speaking out about workplace abuses. This allows violations like unpaid wages, unsafe working conditions, inadequate housing facilities, and retaliation to occur with impunity. (5) Filing complaints is difficult for guestworkers because most do not speak sufficient English and lack resources like transportation, time, and money to pay for legal assistance. (6) Even if a guestworker does succeed in filing a complaint, the employer may still effectively shut her out of the guestworker program by refusing to hire her again and informally blacklisting her. (7) One supposed safeguard against such exploitation is that employers are required to attest under penalty of perjury to various conditions in the application to the government to receive guestworkers. These conditions include promises to pay the minimum or prevailing wage as determined by the Department of Labor (DOL), uphold health and safety laws, and not retaliate against workers who make complaints. (8) Employers must also comply with all immigration laws and must register their employees with the Department of Homeland Security (DHS). There is little to no oversight of the guestworker programs, however, which creates a culture of fear among guestworkers. While employers are legally bound by the terms of the guestworker programs and applicable labor laws, enforcement is based upon the employers agreeing under penalty of perjury to abide by these terms. This "attestation model" places the onus on the workers to report violations and enables unscrupulous employers to ignore their legal obligations. Guestworkers face a difficult power imbalance that leads many to quietly acquiesce to substandard wages and working conditions. …