New Orleans Workers’ Center for Racial Justice Details Labor Department’s Unlawful Changes, Which Discourage Vulnerable Workers from Reporting Crimes and Abuse
Prior to Change, DHS Officials Noted “Invaluable” Role of DOL’s Visa Certification Program; DOL Abandoned Cornerstones of Visa Program Anyway
Washington, D.C. — ICYMI: On behalf of the New Orleans Workers’ Center for Racial Justice (NOWCRJ), Democracy Forward advanced its lawsuit against the Department of Labor (DOL) for unlawfully abandoning essential protections for immigrant workers who, after being subjected to workplace abuse or human trafficking, assist law enforcement in investigating and prosecuting the criminal actors.
Prior to the Trump administration’s change, DOL ran an effective program that allowed immigrant workers to receive certification for U and T visa applications when they assisted in investigations or prosecutions of workplace crimes. U and T visas allow immigrant victims of serious crimes — including human trafficking, labor exploitation, and other workplace abuses — to obtain visas to remain in the U.S. lawfully when they assist in the investigation and prosecution of criminal offenders. DOL’s Wage and Hour Division is often the first government agency to encounter such exploited workers, given its mandate to enforce many key labor laws. DOL’s prior visa certification program was so effective United States Citizenship and Immigration Services (USCIS) — which reviews the U and T visa applications — explained in a June 2019 email to the Wage and Hour Division that the Division provides “critical evidence” that allows USCIS to better assess U and T visa applications. USCIS said, “WHD’s role in detecting criminality during the process of workplace investigations is invaluable.” Yet, on July 1, 2019, DOL changed its visa certification program in a manner that makes workers less safe and discourages them from assisting law enforcement in fighting workplace crimes — making it easier for abusive employers to get away with exploitation. The Trump administration’s new visa certification rule is arbitrary and capricious, in violation of the Administrative Procedure Act.
“The Trump administration’s unlawful changes to the Labor Department’s U and T visa certification program jeopardizes the safety of all workers while protecting their abusive employers,” said Democracy Forward Managing Senior Counsel Robin Thurston. “We’re proud to continue our fight to protect vulnerable workers and ensure the Labor Department follows the law when making critical policy changes.”
With visa certification under DOL’s prior, more robust visa certification program, immigrant workers facing abuse were then able to petition U.S. Citizenship and Immigration Services for the U and T visas, which confer legal status without depending on a visa sponsored by their abusive employer. When, for instance, one Louisiana crawfish processor forced its immigrant workers to toil for 16 to 24 hours straight without overtime pay, locked them in the plant while working, and threatened to fire them if they complained (which would result in the loss of their temporary immigration status), DOL’s prior visa certification program helped workers fight the company’s violations. Martha Uvalle, a guestworker from Mexico, and her coworkers worked with NOWCRJ and successfully organized against the crawfish processor’s ghastly abuses. Because Uvalle reported the workplace abuses to DOL, she was able to secure a U visa with DOL’s certification and remain in the U.S. legally after her employer retaliated against her. Thanks to Uvalle and her coworkers’ efforts, Walmart dropped the supplier, and DOL opened an investigation that resulted in fines for the company. DOL’s unlawful changes to its visa certification program make it harder for immigrant workers like Uvalle to protect themselves and others from egregious workplace abuse.
As Ursula Price, Executive Director of NOWCRJ, says in a declaration submitted to the court, NOWCRJ found DOL’s prior visa certification program to be “an effective avenue of redress for immigrants experiencing abusive working conditions” until the Trump administration eliminated key protections. Now, Price explains, “employees with temporary guestworker visas or no visas at all face significant barriers to reporting abuses, for fear of losing their jobs, being blacklisted from other employment, and/or being deported.”
The Trump administration’s rollback made a number of harmful changes. In contrast to its prior policy, DOL now refers worker complaints to a criminal law enforcement agency before certifying a request, requires that law enforcement agency to agree with DOL’s assessment of a potentially qualifying crime before certifying a request, and no longer mandates that its certification decisions be made in a timely manner. These changes further endanger already vulnerable immigrant workers who are frequently subjected to labor violations.
Democracy Forward filed the motion for summary judgment on December 8. Read it in full here. The lawsuit was filed on July 7 in the U.S. District Court for the District of Columbia. Read the original complaint here.
Democracy Forward is a nonprofit legal organization that scrutinizes Executive Branch activity across policy areas, represents clients in litigation to challenge unlawful actions, and educates the public when the White House or federal agencies break the law.
The New Orleans Workers’ Center for Racial Justice (NOWCRJ) was founded as a workers’ rights and racial justice response to the man-made disaster that came along with Hurricane Katrina. As politicians and employers attempted to use the storm to pit communities of color against each other, a group of Black and immigrant workers came together from public housing developments, FEMA trailer parks, day labor corners, and labor camps across Louisiana to build a new freedom movement: multi-racial; committed to racial, gender, and immigrant justice; and dedicated to building power at the intersection of race and the economy. For more than a decade, the members of NOWCRJ have continued to fight for dignity and justice, winning higher wages, better working conditions and pro-worker policies.
Sabina Hinz-Foley Trejo
New Orleans Workers’ Center for Racial Justice