Representing Undocumented Workers

The Ins And Outs Of Representing Undocumented Workers

Low Wage Worker Taskforce Summer Intern Training 1. Overview of Challenges for Undocumented Workers In The Workforce A. Work Authorization

• Employers are required to ensure that employees they hire are

authorized to work. ▪ I-9 Verification Process ▪ E-Verify

• Many people work without authorization, and some employers

knowingly hire people in violation of the law by: ▪ Not going through the I-9 process ▪ Encouraging workers to obtain false documents (e.g., fake SSN card)

• Document Fraud

▪ Worse to provide fake documents than to provide no documents ▪ Higher risk to the worker should this come out B. Increased Opportunities for Abuse

• Employer may take advantage of EE’s undocumented status to commit

wage theft or other labor violations. ▪ Payments are often off the books in cash. ▪ Some employers claim to be withholding for taxes even if they never collected a SSN or TIN from the employee.

• Employee may be less likely to know/complain

▪ Lack of knowledge of the law ▪ Limited English Proficiency ▪ Worried about finding another job if they get fired 2. Damages Available to Undocumented Workers

• Background: From Sure-Tan to Hoffman Plastics

a. Prior to the Immigration Reform and Control Act of 1986 (IRCA),

immigration law expressed a generalized policy against 1 These materials were jointly prepared by David Colodny (Catholic Migration Services), Jonathan Bernstein (Isaacs Bernstein, P.C) and Laura Rodriguez (Frontera Law PLLC).

The Ins And Outs Of Representing Undocumented Workers

employing undocumented persons, but it was not specifically unlawful to employ an undocumented person. ■ Although IRCA made it unlawful to employ an undocumented person, it did not make it unlawful for an undocumented person to accept employment, though procurement and use of fraudulent immigration documents are unlawful.

b. Accordingly, under the rule of Sure-Tan, Inc. v. NLRB, 467 U.S.

883, 903 (1984), an undocumented plaintiff was not barred from recovery for NLRA violation, but the accrual of backpay was tolled while the plaintiff remained undocumented, and any order of reinstatement was required to be stayed pending the plaintiff’s lawful admission to the U.S.

c. In 2002, the Supreme Court revisited the issue in light of IRCA.

The Court determined, in Hoffman Plastic Compounds v. NLRB, 523 U.S. 137, that, under the NLRA, an undocumented plaintiff cannot recover damages for wrongful termination because it would be unlawful for him to mitigate damages.

• The federal cases show that there is a tension between IRCA and the

labor/employment laws. In discrimination cases, the tension is resolved by barring backpay awards to undocumented plaintiffs, because it would be unlawful for them to mitigate damages. However, in the case of FLSA plaintiffs, who seek backpay for work actually performed rather than backpay from the time of termination (as a remedy for wrongful dismissal), courts resolve the tension the opposite way: they regard immigration status as irrelevant. This is because it would undermine the purpose of IRCA, create perverse incentives and drive down wages for U.S. citizens and lawful immigrants if employers could hire undocumented immigrants at sub-minimum wages and the immigrants had no remedy.

Title VII. The consensus among practitioners is that an o undocumented plaintiff cannot recover back pay from the time of termination, for the Hoffman Plastics reasons, even though Title VII protects all employees, even undocumented employees, from discrimination on the basis of race, religion, etc., as noted by courts for many years. However, there is no Second Circuit case on point and state laws may allow for back pay to be issued.

F.R.D. 190 (S.D.N.Y. 2006), discovery into plaintiff’s immigration status was barred during the liability phase of the case, subject to renewed application for discovery during the damages phase.

The Ins And Outs Of Representing Undocumented Workers

▪ In Iweala v. Operational Technologies Services, Inc., No. 1- 04-cv-2067 (D.D.C. July 14, 2009) the Court rejected the employer’s claims that Title VII did not protect the plaintiff because she was undocumented. The Court reiterated that the definition of an employee in Title VII “seem[s] to encompass all employees regardless of immigration or visa damages available to the plaintiff, and the case appears to have settled shortly after this decision. Accord Rivera v.

NIBCO, Inc., 364 F.3d 1057 (9th Cir. 2004). ▪ Salas v. Sierra Chem. Co., 327 P.3d 797, 808–09 (Cal. 2014), allowed an undocumented worker to pursue backpay under California state law for the time period before the employer discovered the worker’s undocumented status. ▪ In EEOC v. Fair Oaks Dairy Farms, 2012 WL 3138108 (N.D. Ind. Aug. 1, 2012), the court rejected a defense demand for discovery into the plaintiff’s immigration status because the EEOC sought relief for a hostile work environment, not constructive discharge.

FMLA. Research reveals no federal FMLA case in which the issue o was raised. However, a Wisconsin state court construed that state’s law to determine that an undocumented plaintiff could seek the relief of reinstatement. Burlington Graphic Systems Inc.

v. Department of Workforce Development, Equal Rights Division,

Case No. 2014AP762, in the State of Wisconsin Court of Appeals, District II. Personal Injury. In Balbuena v. IDR Realty LLC, 845 N.E.2d 1246 o (2006), the New York Court of Appeals determined that undocumented persons seeking relief under workplace safety statutes may recover. However, the holding leaves room for employer counterattack:

▪ In light of these considerations, defendants have not overridden the presumption against preemption afforded by the Supremacy Clause. In the context of Labor Law claims, a per se preclusion of recovery for lost wages would condone the employers' conduct in contravention of IRCA's requirements and promote unsafe work site practices, all of which encourages the employment of undocumented aliens and undermines the objectives that both IRCA and the state Labor Law were designed to accomplish.

Moreover, there is no evidence in the records before us that plaintiffs (like the alien worker in Hoffman) tendered false

clear that the protections of the FLSA are available to.

citizens and undocumented workers alike.”) (citation.

omitted);. Colon v. Major Perry Street Corp.,. 987 F.Supp. 2d.

451, 459 (S.D.N.Y. 2013) (“FLSA's mandatory language.

leaves no discretion for courts to alter the statute's.

The Ins And Outs Of Representing Undocumented Workers

documentation in violation of IRCA or that their employers satisfied their duty to verify plaintiffs' eligibility to work. In addition, plaintiffs have allegedly suffered physical injuries that have limited their ability to be employed, unlike the alien worker in Hoffman who suffered no bodily injury whatsoever. We therefore hold, on the records before us in these Labor Law §§ 200, 240(1) and § 241(6) cases, and in the absence of proof that plaintiffs tendered false work authorization documents to obtain employment, that IRCA does not bar maintenance of a claim for lost wages by an undocumented alien. Id. at 1260.

▪ The Second Circuit agrees that NY state laws are not preempted by IRCA. Madeira v. Affordable Housing Foundation, Inc., 469 F.3d 219 (2d Cir. 2006.) Workers Compensation. Undocumented plaintiffs may recover. o New York Hosp. Med. Ctr. Of Queens v. Microtech Contracting Corp., 22 N.Y.3d 501 (Ct. App. 2014).

NYCHRL and NYSHRL. Research reveals no cases or o administrative orders on the availability of backpay under those laws. Although NYC Admin. Code § 8-107 prohibits discrimination on the grounds of, inter alia, “alienage or citizenship status of any person,” research reveals no authority stating whether the quoted language entitles undocumented plaintiffs to recover backpay in discrimination cases.

3. Discovery of Immigration Status A. Immigration Status Irrelevant Under Most Labor Laws

• Unless you are seeking relief that makes immigration status relevant –

e.g., front back and back pay – it is generally irrelevant to the underlying claim.

▪ Flsa

• Courts have routinely held that all employees, regardless

of immigration status, are protected by the provisions of the FLSA and thus, status bears no relevance to a claim for unpaid wages. See Rosas v. Alice's Tea Cup, LLC, 127 F. Supp. 3d 4, 9 (S.D.N.Y. 2015) (“[F]ederal courts have made omitted); Colon v. Major Perry Street Corp., 987 F.Supp. 2d

remedial scheme based on an employee's immigration: status.”);.

NY Slip Op 50854(U): See also.

The Ins And Outs Of Representing Undocumented Workers

(E.D.N.Y. 2002); In re Reyes, 814 F.2d 168, 170 (5th Cir. 1987) (“[I]t is well established that the protections of the Fair Labor Standards Act are applicable to citizens and aliens alike and whether the alien is documented or undocumented is irrelevant.”). F.Supp.3d 424 (2014) (collecting cases) (the court overturned MJ Brown’s order compelling Plaintiffs to answer interrogatories regarding their immigration status, and also distinguished Bermudez v. Karoline's International Restaurant Bakery, 2013 WL 6146083 (E.D.N.Y. Nov. 21, 2013) a prior case in which MJ Brown permitted discovery of immigration status in an FLSA case).

▪ NY Labor Law Wage and Hour

• Immigration status is irrelevant to application of minimum

wage and overtime provisions within the NYLL. See, e.g., Molina v. Two Bros. Scrap Metal, 59 Misc. 3d 1232(A), 2018 NY Slip Op 50854(U) (N.Y. Sup. Ct., Nassau County 2018); A.D.2d 875, 876 (2d Dep’t 1979) (holding that immigration status is not relevant to an employee’s right to recover (New York’s wage payment laws are enforceable by immigrants not authorized to work in the United States).

Avoid pleading claims/relief that might make immigration status a o relevant issue! B. Discovery of Immigration Status in Wage and Hour Cases is Routinely Precluded Due to In Terrorem Effect

• E.E.O.C. v. First Wireless Group, Inc., 225 F.R.D. 404, 406 (E.D.N.Y.

2004), aff’d Civ. No. 03-4990, 2007 U.S. Dist. LEXIS 11893 (E.D.N.Y. Feb. 20, 2007) (“[I]f this Court does not suppress discovery into the Charging Parties’ immigration status, it would significantly discourage employees from bringing actions against their employers who engage in discriminatory employment practices.”)

• Marquez v. Erenler, 12-Civ-8580, 2013 U.S. Dist. LEXIS 138630, *3

(S.D.N.Y. 2013) (compelling disclosure of immigration status would

the context of wage and hour violations under both the FLSA and the.

NYLL, immigration status has generally been protected from.

discovery.”) (citations omitted).

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• Rosas v. Alice's Tea Cup, LLC, 127 F. Supp. 3d 4, 9 (S.D.N.Y. 2015) (“[I]n

(E.D.N.Y. 2014) (reversing Magistrate Judge’s Order that Plaintiffs respond to Defendants’ interrogatories regarding their immigration status as “contrary to law”)

• Zeng Liu v. Donna Karan Int’l, Inc., 207 F. Supp. 2d 191, 192 (S.D.N.Y.

2002)

• Rengifo v. Erevos Enterprises, Inc., Civ. No. 06-4266, 2007 U.S. Dist.

LEXIS 19928, at *5 (S.D.N.Y. Mar. 20, 2007) (“Courts have recognized the in terrorem effect of inquiring into a party’s immigration status and authorization to work in this country when irrelevant to any material claim because it presents a danger of intimidation [that] would inhibit plaintiffs in pursuing their rights.”) (internal quotations and citations omitted); C. Strategy Around Improper Discovery – Move for Protective Order or

Wait for Motion to Compel?

• Plaintiff must choose whether to affirmatively seek relief via a motion

for a protective order, or wait and oppose a motion to compel. ▪ Many defendants will not press the issue through a motion to compel, and often the situation is resolved once counsel objects. ▪ Making a motion for protective order may unnecessarily create the risk of a negative decision when the other side was not going to press the issue.

D. Admission of Immigration Status at Trial – Mostly Favorable Rulings on Motions in Limine

• Demirovic v. Ortega, 2017 WL 4621089 (E.D.N.Y. Oct. 13, 2017)

(granting motion in limine due to potential prejudicial effect); (S.D.N.Y. 2006) (holding that inquiry into immigration status should be barred due to its “highly prejudicial” effect on determination of liability at trial).

(granting motion in limine to preclude inquiry into Plaintiff’s.

immigration status at trial)..

(granting motion in limine to preclude inquiry into Plaintiff’s: immigration status at trial)..

“Although income tax returns are not inherently: privileged, courts are typically reluctant to compel their.

“Although income tax returns are not inherently: disclosure because of both ‘the private nature of the.

“Although income tax returns are not inherently: sensitive information contained therein’ and ‘the public.

“Although income tax returns are not inherently: interest in encouraging the filing by taxpayers of complete.

“Although income tax returns are not inherently: and accurate returns.’” Uto v. Job Site Services, Inc., 269.

“Although income tax returns are not inherently: F.R.D. 209 (E.D.N.Y. 2010) (quoting Smith v. Bader, 83.

“Although income tax returns are not inherently: F.R.D. 437, 438 (S.D.N.Y.1979))..

The Ins And Outs Of Representing Undocumented Workers

• Corona v. Adriatic Italian Rest. & Pizzeria, 2010 WL 675702 (E.D.N.Y.

2010) (granting Plaintiffs’ motion in limine to preclude inquiry into Plaintiffs’ immigration status at trial).

• Solis v. Cindy’s Total Care, Inc., 2011 WL 5170009 (S.D.N.Y. 2011)

• Ji v. Aily Foot Relax Station, Inc., 2023 WL 35240 (S.D.N.Y. 2023)

• Campos v. Lemay, 2007 WL 1344344 (S.D.N.Y. 2007) (denying Plaintiff’s

motion in limine on basis that immigration status may be relevant to Plaintiff’s credibility, but stating that a limiting instruction would be given to the jury). 4. Discovery of Tax Returns Defendants may seek discovery of Plaintiffs’ tax returns on the assumption that undocumented workers may not have filed tax returns, or may not have reported all of their income (as much or all of that income may have been in cash).

• Courts are generally protective of tax returns:

Federal Court – a “quasi-privilege” o ▪ “Although income tax returns are not inherently ▪ The party seeking discovery of tax returns must establish that the returns are relevant to the subject matter of the litigation; and that there is a compelling need for disclosure of the returns because the information contained therein is not readily available elsewhere. U.S.

v. Bonnano Crime Family, 119 F.R.D. 625; 1988 U.S. Dist.

LEXIS 17401 (E.D.N.Y., March 25, 1988).

• Some courts place the burden on the party arguing

against disclosure to demonstrate that the information can be obtained elsewhere. ▪ Some cases protecting Plaintiffs’ tax returns:

5682891 (E.D.N.Y. March 8, 2023) (employer failed to.

demonstrate compelling need in FLSA case);.

The Ins And Outs Of Representing Undocumented Workers

• Zamora v. $49.99 Sewer Man, Inc., 2023 WL

• Rosas v. Alice’s Tea Cup, 2015 WL 4097947

(S.D.N.Y. 2015) (granting protective order and denying employer’s request that employee produce tax returns);

• Yong F. Ke v. 85 Fourth Ave., Inc., 2009 WL

1058627 (Sdny 2009);

• Chen v. Republic, 2008 WL 793686 (SDNY 2008)

▪ Some cases ordering production of Plaintiffs’ tax returns:

• Rahman v. Smith & Wollensky Restaurant Group,

Inc., No. 06 Civ. 6198(LAK)(JCF), 2007 WL 1521117, at *7 (S.D.N.Y. May 24, 2007) (setting out standard but compelling disclosure of worker’s tax returns because actual earnings relevant to issue of back pay); ▪ W2 may suffice. There are many cases stating that plaintiffs don’t have to produce full tax return where W-2 and/or 1099 will reflect earned income. See, e.g., N.Y.S.2d 605, 607, 2003 N.Y. App. Div. LEXIS 260 (3d Dep't 2003); Shabasson v. Greenberg, Trager, Toplitz & Herbst, 284 A.D.2d 230, 726 N.Y.S.2d 552, 2001 N.Y. App.

Div. LEXIS 6553 (1st Dep't 2001); Manzella v. Provident Life & Cas. Co., 273 A.D.2d 923, 709 N.Y.S.2d 772, 2000 N.Y. App. Div. LEXIS 6857 (4th Dep't 2000). Motion in Limine re: Tax Information at Trial o ▪ Demirovic v. Ortega, 2017 WL 4621089 (E.D.N.Y. Oct. 13, 2017) (court granted motion in limine precluding introduction of evidence of Plaintiffs’ payment or non- payment of taxes; lengthy discussion of legal standards and compelling need analysis in FLSA case); State Court – Similar Protection o ▪ The party seeking disclosure must make a strong showing of necessity and demonstrate that the information contained in the returns is unavailable from other sources (Gordon v Grossman, 183 A.D.2d 669, 670, 584 N.Y.S.2d 54 [1992]). McMahon v. Aviette Agency, Inc., 301 A.D.2d 820, 753 N.Y.S.2d 605 (3d Dep't 2003).

• Handling Deposition Questions On Tax Returns

The Ins And Outs Of Representing Undocumented Workers

State Court Rules - 22 NYCRR 221.2 o ▪ Section 221.2 identifies three narrowly circumscribed circumstances in which a deponent may refuse to answer or the deponent's attorney may instruct him or her not to answer: (i) to “preserve a privilege or right of confidentiality”; (ii) to enforce a limitation set forth in a court order; and (iii) “when the question is plainly improper and would, if answered, cause significant prejudice to any person.” (22 NYCRR § 221.2 [a]-[c] [emphasis added].) Any refusal to answer or instruction not to answer must “be accompanied by a succinct and clear statement of the basis therefor.” (Id. § 221.2 [c].) The deponent's attorney may not, therefore, direct the deponent not to answer a question yet decline to explain why pending a future discovery conference with the court.

N.Y.S.3d 218 (Sup. Ct., N.Y. County, 2020). ▪ For a lengthy discussion of deposition objections/instructions, see J.R. v. V.M., 81 Misc.3d 1230(A), 201 N.Y.S.3d 925 (Sup. Ct., Westchester County, 2024). Options for Responding: o ▪ Instruct the witness not to answer on the basis that it is to preserve a right of confidentiality and the question is improper given the general protection afforded to tax returns.

▪ If the Court requires the employee to answer, consider whether the employee may want to assert a 5th Amendment Privilege to refuse to answer.

• Reducing the Likelihood of Discovery of Tax Returns

Avoid pleading claims or seeking damages that may make the o Plaintiffs’ tax returns potentially more relevant – e.g., seeking back pay or front pay. Avoid asking for defendants’ tax returns unless there is a o distinguishable reason to seek those returns – e.g., defendant has made an issue out of their gross revenue (e.g., below the FLSA $500,000 threshold) and does not have other documentation stating such gross revenue.

Make sure defendants know that if they press the issue and o obtain an order to see Plaintiffs’ tax returns, then Plaintiffs will similarly press for the Defendants’ tax returns (assuming a good faith basis to do so).

The Ins And Outs Of Representing Undocumented Workers

5. Retaliatory Threats or Actions Based on Immigration Status

• NY Labor Law Protections

▪ NYLL 215(1)(a) prohibits discrimination or retaliation against an employee “because such employee has made a complaint to his or her employer, or to the commissioner or his or her authorized representative, or to the attorney general or any other person, that the employer has engaged in conduct that the employee, reasonably and in good faith, believes violates any provision of this chapter, or any order issued by the commissioner (ii) because such employer or person believes that such employee has made a complaint to his or her employer, or to the commissioner or his or her authorized representative, or to the attorney general, or to any other person that the employer has violated any provision of this chapter, or any order issued by the commissioner (iii) because such employee has caused to be instituted or is about to institute a proceeding under or related to this chapter, or (iv) because such employee has provided information to the commissioner or his or her authorized representative or the attorney general, or (v) because such employee has testified or is about to testify in an investigation or proceeding under this chapter, or (vi) because such employee has otherwise exercised rights protected under this chapter, or (vii) because the employer has received an adverse determination from the commissioner involving the employee.”

• Informal complaints are protected activity.

▪ What constitutes retaliation or discrimination:

• “discharge, threaten, penalize, or in any other manner

discriminate or retaliate against any employee” – NYLL 215(1)(a)

• At least one federal court has held that it is illegal under

the FLSA to report a worker to immigration enforcement agencies as retaliation for their wage-hour complaint. See (W.D.N.Y, 2003) (employer who retaliates against an employee by reporting him/her to INS and claiming he/she is a terrorist will be in violation of anti-retaliation provision of FLSA); Singh v. Jutla & C.C.&R’s Oil, Inc., 214 F. Supp. 2d 1056 (N.D. Cal. 2002); Contreras v.

Corinthian Vigor Insurance Brokerage, Inc., 25 F.Supp.2d 1053 (N.D. Cal. 1998).

• Former employees are included within the definition of

A.D.3d 914, 915 (2d Dept 2011) (“the clear intention was to

The Ins And Outs Of Representing Undocumented Workers

provide a cause of action against current and former employers for discriminatory or retaliatory acts”); Oram v. SoulCycle LLC, 979 F. Supp. 2d 498 (S.D.N.Y. 2013) (former employee stated a retaliation claim alleging he and his counsel were told after his employment had ended and a complaint was filed that they could not enter employer’s premises); Liverpool v. Con-Way, Inc., 2009 WL 1362965, 12 (E.D.N.Y. 2009) (former employee stated a retaliation claim alleging that the employer disseminated false and damaging information about him to prospective employers in response to filing an unemployment benefits claim). But see Chevalier v. Civil Service Employees Ass’n, 2011 WL 1298739 (N.D.N.Y. March 31, 2011).

• NY DOL Assistance and Process

▪ How to file a claim.

▪ Will DOL assist employees who have attorneys?

▪ Process for investigation and determination.

▪ Does NYDOL want to know a worker’s immigration status?

▪ Remedies available to NY DOL. See NYLL 215(1)(b).

• Civil penalty of between $1,000 and $20,000;

• “All appropriate relief” including enjoining the conduct of

any person or employer;

• ordering payment of liquidated damages of up to $20,000

to the employee by the person or entity in violation;

• Backpay; and

• Order reinstatement to the employee’s former position or

an equivalent position, or front pay in lieu of reinstatement.

• Seeking Remedy in Court

▪ Private Right of Action exists under NYLL 215(2)(a). ▪ Remedies Available:

• Injunctive relief to restrain violations, within two years

after such violation;

• “All appropriate relief,” including:

Injunctive relief; o Payment of liquidated damages up to $20,000 in o addition to any other remedies available under Section 215; Attorneys’ fees and costs; o Reinstatement, or front pay in lieu of reinstatement; o and Backpay. o

The Ins And Outs Of Representing Undocumented Workers

• Note re Statute of Limitations. “The statute of limitations

shall be tolled from the date an employee files a complaint with the commissioner or the commissioner commences an investigation, whichever is earlier, until an order to comply issued by the commissioner becomes final, or where the commissioner does not issue an order, until the date on which the commissioner notifies the complainant that the investigation has concluded. Investigation by the commissioner shall not be a prerequisite to nor a bar against a person bringing a civil action under this section.

▪ Considerations:

• What will need to be put on the record to make a

motion/claim, and does this put client in more danger?

• Are there other options – e.g., getting agreement from

opposing party about no retaliation?

• Seek only damages that will not implicate immigration

status an issue?

6. Advising Clients About Risks and Potential Benefits

• Important to understand the concerns of undocumented clients and to

advise on the potential risks and the potential benefits of pursuing claims so that the client can make an informed decision about whether/how to proceed in asserting legal claims.

• Potential Risks include:

Retaliation – loss of job o Worker reported to immigration authorities o

▪ But what will happen then?

• ICE Memorandum

Depending on the administration, there is typically a DHS policy o memo in place regarding immigration enforcement against workers involved in labor disputes See: https://www.dhs.gov/publication/memorandum-worksite- o enforcement 7. Tax Issues in Connection with Settlement/Payment

• Employer has same obligations to withhold and report, regardless of

employee’s work authorization. ▪ And employee not excused from filing tax returns just b/c w/o work authorization. ▪ Most employees can get a TIN (w-7) (discussed below)

• Talk to your client early in the case about getting a TIN if they don’t

have one. ▪ It usually takes 4-6 weeks to get a TIN

The Ins And Outs Of Representing Undocumented Workers

• But, client will need certain documentation to get a TIN.

See IRS Form W-7 Instructions.

• Client can seek assistance from their consulate to try to get

required documents from their home country. ▪ There are organizations in NYC authorized by the IRS to process TIN applications.

• Lower East Side People’s Federal Credit Union

• Urban Upbound

• Never condition settlement payments on providing a TIN/SSN/W9

▪ Settlement should require payment regardless of whether TIN/SSN provided. ▪ But ER required to do backup withholding if no TIN provided. See IRS Pub. 1281. ▪ Providing a W-9 that says “Applied For” does not help.

• A W-4 Form is not needed in order to process settlement payments.

▪ The purpose of the W4 is to claim exemptions from withholding. ▪ You cannot use a TIN on a W-4 (only a SSN) ▪ If EE has a SSN, you can provide a W-4 to try to avoid some withholding

• Pitfalls of handling settlement money in escrow

▪ Potential responsibility for tax withholding and reporting ▪ Disappearance of client 8. Immigration Relief

• U Visa

○ The Victims of Trafficking and Violence Prevention Act (VTVPA) was enacted to strengthen the ability of law enforcement agencies to investigate and prosecute serious crimes and trafficking in persons, while offering protections to victims of those crimes without the immediate risk of deportation. ■ Congress created the U Visa out of recognition that victims without legal status may otherwise be reluctant to help in the investigation or prosecution of criminal activity.

○ Eligibility for a U Visa includes the following: ■ The applicant must be the victim of a qualifying crime occuring in the United States or a territory of the United States; ■ The applicant must have suffered significant physical or mental harm due to the crime; ■ The person must cooperate with law enforcement to help with the prosecution or investigation of the crime;

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■ A relevant law enforcement agency must certify that the applicant cooperated with the prosecution or investigation.

• T Visa

○ The T visa is a nonimmigrant visa providing legal status to certain victims of severe forms of trafficking. ■ The T Visa protects victims of both sex and labor trafficking.

• Labor Trafficking is defined as “the recruitment,

harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary U.S.C. § 7102(9). ○ Eligibility for a T Visa includes the following: ■ The applicant must be a victim of severe human trafficking; ■ The applicant must be residing in the United States as a result of the human trafficking; ■ In most cases the applicant must cooperate with law enforcement to help with the prosecution or investigation of the crime (but there are some exceptions); and ■ If deported from the United States, the applicant will likely suffer extreme hardship.

• Deferred Action for Labor Enforcement

○ Undocumented workers may be granted a two-year work permit and protection from deportation if they are witnesses in labor investigations. ○ Although deferred action does not confer lawful status, someone granted deferred action is considered lawfully present in the United States for certain limited purposes while the deferred action is in effect.

○ Those who are granted deferred action are also eligible for work authorization.

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Sample Settlement Language Re: Itin/Ssn

Complainants agree to provide to Employer, through counsel, a Form W-9 or an Individual Taxpayer Identification Number (“ITIN”) to assist Employer in the lawful issuance of the above payments. If any Complainant fails to provide a W-9 or ITIN to Employer within ten (10) days of the Effective Date of this Agreement, such failure will not excuse Employer from paying that Complainant their settlement payment as described above but will entitle Employer to make backup tax withholdings as required by law (see IRS Pub. 1281) until such time as the Complainant provides a Form W-9 or ITIN. Notwithstanding the foregoing, if the Employer already has a Complainant’s Social Security Number (SSN) or ITIN from the Complainant’s employment at the Employer, the Employer shall use such SSN or ITIN to effectuate the tax withholding and reporting obligations, and shall not make backup withholding.