Latest Update December 14, 2020

Prior to Change, DHS Officials Noted “Invaluable” Role of DOL’s Visa Certification Program; DOL Abandoned Cornerstones of Visa Program Anyway

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In 2019, the Department of Labor upended a protective visa certification program for immigrant workers who assisted the Department in investigations of serious workplace crimes. The Trump administration now requires DOL to refer any such reports to another law enforcement agency, such as the local police department, and relies on the other agency’s analysis of the reported crime to determine whether to certify the worker’s visa application. For workers who fear interacting with traditional law enforcement, a common concern for immigrant workers of color, this requirement is an unnecessary obstacle to reporting labor violations.

The unlawful change is a dramatic departure from the effective program DOL’s Wage and Hour Division had run. As an enforcement agency on the front lines of detecting workplace crimes, the Wage and Hour Division’s authority to certify U and T humanitarian visa applications had encouraged reporting, thereby protecting immigrants and workers generally. Immigrant workers have historically been more comfortable reporting violations to DOL than to other law enforcement agencies.

The Trump administration’s new requirements make immigrant workers more vulnerable to retaliation or deportation if they report workplace crimes and limit options for workers who fear interacting with traditional law enforcement agencies — especially in regions where local law enforcement is hostile to immigrants and people of color. Such local agencies have at times referred immigrants who report workplace violations to immigration enforcement and/or alerted their employers of the allegations, raising real concern about immediate workplace retaliation, like dismissal, blacklisting, and the threat of deportation.

Previously, immigrant workers like Martha Uvalle — a guestworker from Mexico who organized against workplace abuses and threats of violence by her employer — were able to obtain DOL certifications and U and T visas, which provided immigration protection after the loss of employer-sponsored visas.

But now, exploited workers are being forced to delay and abandon plans to report abusive working conditions for fear of the consequences of immediate referral to criminal law enforcement and increased abuse by their employer. This crucial path for workers to obtain protections and contribute to enforcement efforts is now limited.

On behalf of the New Orleans Workers’ Center for Racial Justice, we’re suing the Department of Labor for gutting essential visa protections for immigrant victims or witnesses of workplace crimes and labor trafficking. The suit was filed on July 7 in the U.S. District Court for the District of Columbia.

We sued the Department of Labor last December for refusing to release records related to the rule change. Records eventually released by the Department confirm the change was made at the direction of DOL’s political leadership and reveal that the change was applied retroactively.

The Trump administration has continually pursued policies that hurt victims of trafficking and workplace abuses. The new certification rule is particularly harmful amid the pandemic because, as the administration has recently acknowledged, “the number of people vulnerable to exploitation by traffickers is rapidly growing.”

Robin Thurston

Deputy Legal Director

Litigating challenges to unlawful actions, abuses of power, and threats to democracy on behalf of those who are harmed.

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Michael Ceja Martinez

Managing Senior Counsel

Challenging unlawful actions involving the environment, consumer protection, occupational safety standards, and more.

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