On February 13, 2023, the Occupational Safety and Health Administration (OSHA) announced that U.S. Secretary of Labor Marty Walsh and Assistant Secretary of Labor for Occupational Safety and Health Doug Parker had signed a memorandum giving OSHA new authority—effective March 30, 2023—to issue certifications supporting applications for U nonimmigrant status and T nonimmigrant status visas.
The T nonimmigrant status allows eligible “victims of severe forms of trafficking in persons” to remain in the United States on a temporary basis. T status holders receive employment authorization for an initial period of up to four years and qualify for benefits and services, including lawful permanent residency, for themselves and certain family members. There are 5,000 such visas available each year for persons who:
- are or have been subject to “severe trafficking” (i.e., force, fraud, or coercion has been used for sex trafficking and/or involuntary servitude, peonage, debt bondage, or slavery);
- are physically present in the United States, American Samoa, or at a port of entry on account of trafficking;
- have complied with any reasonable request by a federal, state, or local law enforcement agency to assist in the investigation or prosecution of such trafficking or in the investigation of crimes where acts of trafficking are at least one central reason for the crime; or who are unable to cooperate in the investigation or prosecution “due to physical or psychological trauma”; or who are under 18 years of age; and
- who would “suffer extreme hardship involving unusual and severe harm if [they] were removed from the United States.”
The U nonimmigrant status was created through the Victims of Trafficking and Violence Protection Act (VTVPA) of 2000. The VTVPA’s aim is to strengthen the ability of law enforcement agencies to investigate and prosecute serious crimes and trafficking in persons, while offering protections to victims of such crimes such as eliminating the immediate risk of being removed from the country. There is a 10,000 annual cap on U visas for principal applicants. U.S. Citizenship and Immigration Services (USCIS) may deem an individual eligible for a U visa if the victim:
- is the direct or indirect victim of qualifying criminal activity (various federal, state, and local statutes could fall into the general categories of crime that include abduction, false imprisonment, manslaughter, obstruction of justice, peonage, rape, sexual exploitation, and many more);
- has “suffered substantial physical or mental abuse as a result of having been a victim” of criminal activity;
- has information about the criminal activity; and
- “[w]as helpful, is being helpful, or is likely to be helpful to law enforcement, prosecutors, judges, or other officials in the detection, investigation, prosecution of the criminal activity, including the conviction, or sentencing stages” of the criminal activity.
Both the U and T categories require a showing to USCIS that the victim cooperated with law enforcement. This is often demonstrated by submitting a signed statement from law enforcement as part of the application to USCIS. In the U visa framework, this statement is a required part of the petition and is known as “Form I-918, Supplement B, U Nonimmigrant Status Certification.” The certification is key to helping the victim establish that he or she meets the definition of “helpful,” which means the victim has been, is being, or is likely to assist law enforcement, prosecutors, judges, or other government officials in the detection, investigation, prosecution, conviction, or sentencing of the qualifying criminal activity of which he or she is a victim. This includes providing ongoing assistance when reasonably requested.
Effective March 30, 2023, OSHA’s new authority will allow the agency to issue these visa certifications during inspections “when the agency identifies qualifying criminal activities, including manslaughter, trafficking, extortion, felonious assault, forced labor and obstruction of justice.” The stated goal of the program is to encourage cooperation from people whose immigration status or “other social and cultural inequities” may make them reluctant to share information with compliance officers or to report workplace safety and health issues.
Assistant Secretary for Occupational Safety and Health Doug Parker stated that “expanding OSHA’s U and T visa certification authority helps the agency better fulfill its mission to make U.S. workplaces as safe and healthy as possible.” He continued to say that “by enabling OSHA to issue U and T visa certifications, we will be empowering some of our economy’s most vulnerable workers to tell us if their jobs are jeopardizing their safety and health, and that of their co-workers, and to support our enforcement efforts.”
This initiative could come into play in almost every inspection that OSHA opens into employers because one of the qualifying activities is “obstruction of justice”—something OSHA may claim if an employer frustrates a compliance officer. Moreover, given the nature of the U and T visas and the fact that issuance of the certification necessarily implies that criminal activity has happened or will happen, there is an implicit transformation of OSHA compliance officers from purely civil enforcement officials into quasi-criminal, even fully criminal enforcement officials. In light of this implicit transformation, employers may want to note that all OSHA inspections are serious activities with serious potential ramifications. Combine OSHA’s new enforcement initiative with a U.S. Department of Justice memo issued on September 15, 2022—“Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group,” issued by U.S. Deputy Attorney General Lisa Monaco, which incentivizes corporate cooperation by disclosing wrongdoing by all individuals in an entity that is investigated—and OSHA inspections are now more critical events than ever.
Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor and report on developments with respect to OSHA’s enforcement initiatives and will post updates on the Workplace Safety and Health blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.
