She blew the whistle on Koch Foods. This little-known visa kept her from being deported by ICE

Thelma came to the United States from Comitancillo, a mountain town in San Marcos, Guatemala. She arrived in Chattanooga, Tennessee. For three months, she said, she was unable to find work. And then she heard about a chicken plant in Morton, Mississippi that was looking for people to work in its “debone” department. By then owned by Koch Foods, the plant had been previously operated by B.C. Rogers, which actively recruited Cuban and Central-American immigrants from other states as part of an effort it called “The Hispanic Project.”

Thelma said she moved to Mississippi in 2003, when she was 28 years old, and was hired at Koch Foods using her real name. Around that time, she said, she had a daughter, a legal U.S. citizen. At the plant, she removes extra bones from different cuts, like wings and thighs. She said the work is tough, and describes the environment as “harsh.” A few years in, she developed painful arthritis in her hands, but said she was too afraid to tell her supervisors, fearing they would fire her.

“My fingers have become completely immobile from cramping. They fold in, and I can’t stretch them open,” she said. To make matters worse, she said she was often forced to work past 5:00 p.m., leaving her young daughter without adult supervision. On those nights, Thelma said, she would arrive at the sitter’s house to find children taking care of each other. “That was a very hard thing to do. But I knew that if I didn’t stay for the overtime, I would lose my job,” she said.

According to a signed declaration her attorney submitted to U.S. Customs and Immigration Services (USCIS) in 2014, Thelma was tormented by her supervisors for years. She claimed that one in particular called her stupid and slow, and told others that Guatemalans don’t know how to work. She said he jabbed her with his elbow and pinched her to get her to work faster, and offered to help her switch to another department for $400. Thelma said she gave him $50 up front, which he kept after changing his mind.

In the declaration, Thelma reported that another supervisor named Lourdes had demanded that she and others pay to take 10-minute bathroom breaks, and that when she tried to take them Lourdes grabbed her work gown and pushed her back to the line. Thelma also said Lourdes pushed her into boxes of frozen chicken, and often raised her fist, as if she was going to punch her. “If immigration comes, every Guatemalan is going to be taken,” Thelma said Lourdes had told the workers. “I know you are all using fake names, and I am capable of calling immigration and having them pick all you up.” Thelma said she began to suffer from chest pains and headaches. She felt stuck, she said, and cried often.

In 2011, EEOC sued Koch Foods for alleged civil rights violations related to the abuse, harassment, and extortion that Thelma and other workers said they had been suffering. Around that same time, a co-worker encouraged her to talk to legal staff at the agency. They told her she would be protected from deportation, and offered an opportunity to apply for legal work status.

The U visa exempts undocumented immigrants from deportation when they help law enforcement or other government officials investigate crimes. It also paves the way toward lawful, permanent work status. The program was created in 2000 as part of the reauthorization of the Violence Against Women Act, which recognized that immigrant women may stay in abusive relationships in order to avoid having to report the abuse to authorities and thereby risk deportation. The visa, which first became available in 2008, also confers “nonimmigrant status” to male and female victims of other crimes, like trafficking and sexual violence. After three years of nonimmigrant status, visa holders can apply for a green card.

The process, which can take years, is long and bureaucratic. Here’s how it works: Often at the behest of worker advocates or attorneys, crime victims reach out to law enforcement agencies, from local police and family protective services to federal agencies like EEOC or the Department of Labor. The agency will certify that the person was a victim, had specific knowledge and details of a crime, and was helpful in the investigation or prosecution. The certification is then sent to USCIS, in support of their U visa application.

That certification is up to the discretion of law enforcement, says Veronica Thronson, a Michigan State University law professor, and director of the university’s immigration law clinic. And it’s not guaranteed. Thronson points out that former Arizona Sheriff Joe Arpaio, for instance, who was infamously tough on immigrants, rarely certified victims in Maricopa County.

Undocumented immigrants are less likely to work with authorities when they are victims of domestic abuse. That’s true when they suffer workplace abuses, too. In an amicus brief filed in the Koch Foods case, the National Labor Relations Board (NLRB) said that, for decades, its investigators found that undocumented workers had been “extremely reluctant” to complain to employers or federal agencies for fear they would lose their jobs or risk deportation. Probing into the immigration status of employee witnesses, the agency said, leads to under-reporting of labor violations, and under-enforcing protections for all workers.

Granting amnesty to immigrant workers who report abuse allays some of those fears, and ultimately helps law enforcement to prosecute the crimes committed against them by providing some security during what can be a lengthy, difficult process. Thronson says Thelma was interviewed twice—first by EEOC staff, then by her—for information about what happened to her and other workers at the Koch plant. According to Thelma’s 2014 U visa application, she was added to the EEOC lawsuit as a class member, with the expectation she would be a witness at trial.

Stacie Jonas, an Austin, Texas-based attorney at Southern Migrant Legal Services, which represented a group of plaintiffs in a prior lawsuit that was then consolidated with the one filed by EEOC, says it only takes one worker to encourage a community of similar victims to come forward.

“Workers are afraid that by making their complaints public, they could end up on the radar screen of ICE or immigration, whether by putting their name on paper, or as a result of retaliation by their employer—especially in cases where the abuse includes making threats to immigration,” says Jonas. “If brave workers do come forward and report the abuse, and word gets around that there have been successful U visa applications, that can inspire additional workers to speak out.”

Jonas says employers have tried undermine those allegations by bringing their accusers’ immigration statuses into lawsuits. In 2013, after Koch Foods was sued by EEOC, the company served the agency with discovery requests for information about U visa applications, which it could then have used as evidence that the allegations of assault and extortion were made up solely to obtain non-immigrant status. A magistrate judge in Mississippi agreed, saying the poultry company had a “legitimate defense,” and after an appeal, so did a district court, saying that the visas were a “powerful motivation for making a false claim.”

If Koch discovered that its accusers had applied for U visas, then it would have learned that they were seeking, and thus did not have, legal work status. Because it’s illegal for companies to knowingly employ unauthorized workers, Koch could have been forced to fire those workers. It could have been held accountable for having hired them in the first place, and fined for that. And the discovery also could have given Koch legal cover to fire workers who’d been alleging abuse.

In an amicus brief, a group of over 90 immigration groups said that disclosing confidential information about U visa applications would have created a “chilling effect” on future victims. Ultimately, an appeals court agreed, and in March of 2018, blocked the discovery. Then, in August of the same year, Koch settled with EEOC, and without admitting to having broken any laws, entered into a consent decree that required the company to take measures to stop the abuse, including establishing a 24-hour hotline to report discrimination, and a $3.75 million settlement to a class of 142 workers, money that it’s still distributing.

Court records from EEOC’s lawsuit suggest that many of the “aggrieved individuals” in the class sought nonimmigrant status in return for reporting the details of alleged crimes. Thronson says she assisted 14 such applicants, including Thelma, all of whom were either granted U visas, or placed on a waitlist that allowed them to seek legal work status. But because of a rapidly expanding backlog, immigration attorneys worry that the U visa will no longer be useful for crime victims like those at Koch Foods, and for law enforcement agencies like EEOC. The government grants only 10,000 U visas every year. Last year, it received almost 35,000 applications—many more thousands of applicants, Thronson says, because there are many more thousands of crimes.

When the program first went into effect in 2008, applications could be processed from start to finish in nine months, attorneys say. By the time Thelma applied for her U visa in 2014, adjudication had slowed down, and according to immigration records, she was placed on a waitlist after two years. Since then, the delay has grown. A recent USCIS data report indicates the agency has a backlog of almost 240,000 applications from crime victims and their families. The number of adjudicators, perhaps as low as 60, located in service centers in Vermont and Nebraska, aren’t keeping pace with the growing number of applications, and attorneys say that applicants now face a 10- to 15-year waiting period for a decision.

“My personal experience is that people are still applying, but the problem is, it’s not as effective,” says Thronson. “It’s basically your retirement plan now. You go and report a crime, and I’ll tell you, in about 14 or 15 years, you may be able to get a work permit.” What is the incentive to volunteer your immigration status to authorities when reporting a crime, she asks, if you can’t be guaranteed any protection?

Furthermore, the fates of the 240,000 immigrants who’ve already come forward to law enforcement, and applied for the visa, are up in the air. Since the advent of the U visa, immigrants with pending applications have been protected from deportation. An ICE memo from 2011 instructs agents not to begin removal proceedings for victims of crime and witnesses. For that reason, Thronson says she advises her clients to carry their application receipts, which acknowledge that their application is in process, in order to protect themselves during a raid like the one on August 7.

But some immigrant victims of crime have reported that their receipts no longer protect them, and others have been deported while their U visa applications were still pending. Advocates say those actions undermine the program. And while the fear of deportation is nothing new, it has increased along with the Trump administration’s heightened border crisis rhetoric. Police departments in cities with large Latinx populations, like Los Angeles, San Diego, Houston, and Denver, are seeing a downward trend in victim reporting.

“Before, you would say, ‘your honor, my client has a U visa pending,’ and then the ICE attorney would contact Vermont, to see that he is prima facia eligible for this U visa. And then the judge would close the case, because otherwise, he would just be waiting” to find out whether her client’s visa was approved, Thronson says. “But now? Now they really don’t care. They’re not going to wait 15 years to see if you’re going to get the U visa. They’re going to deport you.

“These people have no security. They have no idea if their case is going to be approved, they have no work permit, and they have nothing other than they reported the crime, and law enforcement signed a certification saying, yes, you were helpful in the investigation of the case. Now it’s up to the government to decide to keep you here, or deport you.”

After two years on a waitlist, Thelma received her U visa on December 10, 2018, according to immigration records. That status saved her from being deported during the raids on Koch Foods eight months later, when she was detained on site for two hours. On that morning, she said, she was waiting inside her old, gray coupe in the parking lot for the 8:00 a.m. shift change. When she saw the first helicopter over the plant, she thought somebody must have been gravely injured, and was getting airlifted to a hospital. Within minutes, she said, a fleet of black SUVs had sped past her, and blocked the road. Agents spilled out of the cars, swarming the parking lot. She shut her car off, and watched them enter the plant, and return with workers, hands zip-tied behind their backs. “I was just sitting in my car afraid, fearing for my life,” she said.

Soon after, Thelma said, an agent knocked on her door. She said she was zip-tied up, and after 30 minutes, led inside, where she and other workers were told to stand against a wall. “Who has a work visa?” she said they were asked. She answered that she did. That day, however, she’d left her work permit—a photo ID that shows she has a U-visa—at home. An agent put a red bracelet on her wrist, she said, to bus her away for fingerprinting. Desperate, and insistent that she was allowed to be there, she called to another agent, asking him in Spanish to help her. He took her name and date of birth, she said, and disappeared for a few minutes, before returning to let her go.

When I asked ICE about Thelma’s case in particular, its spokesman Bryan Cox wrote in an email: “All persons, regardless of immigration status, were temporarily detained pursuant to the execution of the federal criminal search warrant. From there, all persons determined to be foreign nationals had their status verified.” Cox wrote that work permits, known officially as employment authorization documents (EAD), are commonly fraudulent. Just having one, he wrote, wouldn’t have been enough to get released. It would be “appropriate and reasonable” to verify the work status, he wrote, as the agent who spoke Thelma spoke to may have done.

“An EAD does not itself convey lawful immigration status. In some circumstances it may accompany a separate action that does, but the EAD itself does not,” Cox wrote. That was particularly relevant in the recent raids. “If you review the federal search warrant affidavits, you will note the factual basis states evidence of … identity theft where workers are or were employed by using stolen identities of U.S. citizens. Investigation encompasses more than federal immigration law violations.”

Koch Foods says it has checked work statuses through E-Verify, an online system that compares job applications to information in federal databases, for ten years. In a statement shared with The New Food Economy, the company said it can’t turn down workers who use stolen identities, because “discrimination law” requires the company to accept documents that appear authentic. “Koch Foods is prohibited from asking a worker for additional documentation in such a situation,” the statement said. The company denied the raid was related to EEOC’s lawsuit, which it had “vigorously defended” and settled without admitting any wrongdoing.

Two days after the “invasion,” as Thelma described it, she said she returned to the Koch plant anxious and exhausted. She said only two of her friends remain in the debone department, which used to be staffed almost entirely by Latinx men and women, according to court documents. Thelma said the plant has hired white workers to take over other jobs, including boiling feathers off chickens, but said they don’t do it as efficiently. (Koch did not reply to a request for comment on whether it hired white workers to replace those who were detained in the raids.)

The plant’s system is falling apart, she said, because “we’ve been holding that place together.”

Thelma said her roommates have stayed inside since the raids, too afraid to answer the door, too afraid to look for work or even buy groceries. She is the only one with a work permit in the house, which she shares with five people, including her daughter. Since her cousin was laid off at PH Food, another chicken plant in Morton that was crippled by the raids, Thelma said she is the only one with a job. That makes Thelma responsible for feeding six people on $10.95 an hour.

“I feel very burdened, but I know this is what I have to do to remain family and community with my cousin, my roommates, and the children living with us,” she said. “The struggle is real. The fear is real.”