Migrant workers in California gathered for an exuberant press conference in downtown Los Angeles on Jan. 13 that ended with the destruction of a piñata in the shape of Scabby the rat, the unofficial mascot for organized labor. There was major cause for celebration: The Department of Homeland Security (DHS) had announced a new process that morning by which undocumented workers could apply for protection against deportation when reporting labor violations.
“As Martin Luther King Jr. said, ‘I have a dream.’ We immigrants also have a dream, and our dream is not illegal. We work hard when we come to this country, we want to be respected, and we want to also have our workers’ rights,” said Solange, an immigrant worker associated with California’s Pasadena Community Job Center. Solange was one of several workers who spoke at the press conference, and one of thousands of migrant workers nationwide who successfully pushed the Biden administration toward stronger labor protections for immigrants.
Last year, the Department of Labor (DOL) released new guidance for immigrant workers involved in worksite labor disputes, which allowed them to obtain DOL’s support to receive immigration-related prosecutorial discretion from DHS. Effectively, the policy protects undocumented workers who file labor complaints from worksite immigration enforcement, deportation, and other forms of retaliation from employers. But because only DHS can grant immigration relief—and because DHS did not move as swiftly as DOL—attorneys and advocates were unsure about how DHS was processing workers’ requests for deferred action.
“It didn’t make DOL’s policy toothless; workers were able to submit applications and letters of support and get deferred action,” said Sean Goldhammer, the director of employment and legal services at the Workers Defense Project. “But we didn’t have a lot of clear direction, and each DHS field office seemed to take these applications differently and some would require more material than others. With DHS’ announcement, we now have the information we need to better understand the process.”
Broadly, this is how the process works: When immigrant workers report a workplace rights violation through DOL, the agency can provide workers with a “statement of interest,” or what is essentially a declaration of support for the worker’s deferred action. The second step in the process, which was more clearly outlined by the federal immigration agency in its Jan. 13 announcement, is for DHS to actually grant deferred action to the worker. According to DHS’ new guidelines, the agency will have a centralized intake process, allowing for speedier processing times and enabling workers, advocates, and attorneys to circumvent difficult DHS field offices that are uncommunicative or have excessive wait times. Workers requesting deferred action can now also simultaneously apply for work authorization, which enables undocumented workers to legally work in the U.S.
Not only can federal labor and employment agencies like DOL, the National Labor Relations Board, and the Equal Employment Opportunity Commission support requests for deferred action, but DHS confirmed that state and local agencies can as well. According to Marisa Díaz, director of the National Employment Law Project’s (NELP) immigrant worker program, this is an important development.
“In some states, there are broader workplace protections than what federal law provides,” Díaz explained. “That means if a worker asserts their rights under one of those broader laws, they can receive support from a state agency to pursue deferred action.” Conversely, DHS’ centralized intake process also means that deferred action should be just as accessible to undocumented workers in states with anti-labor laws as it is to workers in states with more progressive labor laws.
“How will workers know they can access this?”
Notably, DHS also made it clear that guest workers are eligible to request deferred action for workplace disputes. This is an important step to protect some of the nation’s most vulnerable immigrant workers, many of whom feel forced into silence because of how guest worker programs are structured. In programs like the H-2A Temporary Agricultural Program, a worker’s visa is tied to a single employer, which means that, when an employer engages in wage theft or labor trafficking, the exploitative employer maintains control of the immigrant’s ability to legally work in the U.S. In many cases, the employer is also in control of the worker’s housing, access to food, and transportation.
Ángel, a former H-2A worker, chose to speak to Prism using a pseudonym because he said it’s risky to speak out against a U.S. government program and American employers. The farmworker is very familiar with why guest workers are reluctant to report labor abuses. Ángel worked in the H-2A program for several years until 2019. During his time picking tobacco and doing other agricultural work in the U.S., three different employers stole wages from him. Ángel was also coerced into paying hundreds of dollars in illegal fees by a labor recruiter—money he was promised would be reimbursed in his first paycheck. The funds never came.
“Maybe some Americans can’t understand why [immigrants] keep quiet because they can’t imagine being in such a position,” Ángel said. “If you keep quiet, you will be rehired, and you can return to the U.S. to work. Even though an employer doesn’t pay us what we’re owed or give us breaks in the heat or give us adequate housing, we endure the abuse because we have families to take care of and it is better to be able to legally work in the U.S. then to sit in Mexico distraught, hungry, and with no way to feed your family.”
Ángel explained that he has many undocumented friends and family members who migrated to the U.S. for work and that they are “terrified” of immigration enforcement and losing what they’ve built through blood, sweat, and tears. The farmworker was pleased to hear of DHS’ new process for providing deferred action to migrant workers, but he was surprised to learn from Prism that the policy extended to guest workers.
“It sounds like a good policy, but how will workers know they can access this?” he asked. “A lot of times, we are not informed of our rights, and employers do not tell us new rules. More than anything, I want to know how this information will reach workers. If we do not find out or we do not know what it says or what it does, how can it be useful?”
Defend, amplify, and promote
Ángel’s questions are good ones, and they are the same questions that Salvador Sarmiento is struggling with. Sarmiento is the national campaigns director at the National Day Laborer Organizing Network (NDLON). The network’s cross-movement, migrant-led labor organizing, by way of the Desde Abajo Labor Enforcement (DALE) campaign and the Blue Ribbon Commission (BRC), was instrumental in pushing the Biden administration to remove the threat of deportation for immigrant workers in labor disputes. Migrant workers participating in DALE bravely spoke out against labor abuses and took to the streets to demand that the administration use existing executive authority to protect them, while the BRC held assemblies, public hearings, and demonstrations to highlight the workplace abuse, wage theft, and violations of health and safety standards routinely experienced by migrant workers.
“This is a movement win—it’s a win for working people that are trying to make visible the abuses that they face,” Sarmiento said. “This is an important step in dismantling the contradiction that exists between the federal government’s role and responsibility to enforce immigration laws and also protect workers’ rights.”
NDLON’s national campaigns director also said it’s a “big deal” that this is perhaps the first time DHS is making it clear that in particular circumstances, the agency will prioritize workplace rights instead of trying to deport workers.
“Now we need to hear a solid plan for informing workers that this exists, and we need to see President Biden defend, amplify, and promote this policy very loudly,” Sarmiento said.
According to advocates who spoke to Prism, Secretary of Homeland Security Alejandro Mayorkas first announced DHS’ new policy to labor organizers and worker centers during Zoom meetings Jan. 13. When asked directly by attendees what the agency’s plan was for publicizing the process for deferred action and disseminating the information to migrant workers, sources who spoke to Prism said the agency “didn’t really seem to have a plan for educating workers.”
Initially, information about DHS’ deferred action policy was not available in Spanish. According to Sur Legal, an immigrant and worker rights nonprofit legal organization in Georgia, immigrant workers experience 300 more workplace fatalities and 61,000 more workplace injuries per year than native-born workers, while 37% receive less than minimum wage and 76% experience wage theft. A large percentage of these workers are monolingual Spanish speakers.
DHS did not respond to repeated requests for comment regarding the agency’s plans to work alongside DOL to promote the deferred action policy to undocumented workers. A DOL spokesperson told Prism in an emailed statement that the agency “recognizes that in order for it to carry out the laws it enforces, workers need to feel safe to participate in enforcement without fear of consequences related to their immigration status.” The statement went on to say that DOL will continue to work with DHS “and across the federal government to make workplaces safer and more equitable for more workers.”
As of Jan. 24, neither President Biden nor Labor Secretary Marty Walsh—both strong defenders of worker rights—have issued statements or publicly commented on DHS’s deferred action policy.
An imperfect offering
Though NDLON, the Workers Defense Project, Sur Legal, NELP, and other organizations focused on immigration and labor are ready to fill in information gaps for migrant workers; Goldhammer said that, without further support from DHS, the deferred action policy on paper “is still a very long way from being a reality for immigrant workers.” Requesting deferred action is also relatively slow and complicated, which means most migrant workers will need professional legal help.
“This isn’t ideal,” Goldhammer said. “In labor cases where workers are reporting serious abuse, you need to immediately be able to protect the worker from immigration-based retaliation so that workers are actually protected and feel empowered to stand up and denounce abuses. Moving forward, I’d like to see the system even more streamlined and more accessible to workers so that they don’t need outside support to go to the government, file a complaint about an abusive labor situation, and be protected.”
As co-founder of Sur Legal, former DOL attorney Shelly Anand now represents immigrant workers experiencing abusive, exploitative, and often dangerous working conditions. This includes migrant workers employed by Foundation Food Group in January 2021 when six of their coworkers died from a negligent and preventable nitrogen leak at the company’s Gainesville, GA poultry processing plant. Six weeks later, workers at the same plant were exposed to an ammonia leak. With Sur Legal’s assistance, migrant workers who participated in investigations into these incidents were able to access deferred action and work permits.
Anand told Prism that she is tempering her feelings about DHS’ new deferred action policy because, while she recognizes it as an important step and one she is “excited about,” she also doesn’t want to overstate what the policy is.
“We need to make it very clear that not every worker that has a labor dispute or issue will receive this benefit,” Anand said. “It is very discretionary. We want immigrant workers to speak to labor attorneys and immigration attorneys and to assess whether this is something they qualify for and understand any potential risks. My fear is that without proper information, workers will think that if they file a wage and hour claim, or any other labor complaint, they’re going to get deferred action and that’s not necessarily the case. This [policy] does not mean that all workers can file labor complaints without fear of deportation. That’s just not true. I just really want to make sure that folks are fully informed about what this is and what this isn’t.”
Sarmiento said NDLON is ready to take on the responsibility of ensuring that “the maximum number of workers” are informed of DHS’ new deferred action policy and that they can access any assistance needed to pursue it. But even before DHS’ recent announcement—which workers and advocates had pushed for since the Obama administration—deferred action was successfully obtained in a few cases.
After DOL announced its deferred action process in July, the DALE campaign put the policy to the test. According to Sarmiento, workers in Nevada, Illinois, Florida, Texas, and Georgia filed labor complaints and successfully obtained deferred action. But NDLON’s national campaigns director clarified that these developments, as important as they are, are not enough to turn the tide on the national crisis of workplace abuse that has engulfed undocumented workers for decades.
“It’s not every day that we move the federal government to do something or that we are able to advance migrant workers’ rights without the help of Congress,” Sarmiento said. “But we’re just now digging ourselves out of a hole that’s 30 years deep. The message that the federal government has sent to undocumented workers for 30 years is that if they speak out, they will be deported. That messaging is going to take a very long time to undo.”
Sarmiento is referring to the Immigration Reform and Control Act (IRCA). Signed into law by President Ronald Reagan in 1986, IRCA granted green cards to nearly 2.7 million immigrants—“roughly three-quarters of the undocumented population at the time,” according to Vox. But the law also made it illegal for employers to hire undocumented workers, and it implemented the I-9 process that requires employers to verify employees have lawful status and are authorized to work in the U.S. In effect, IRCA criminalized undocumented labor and pushed migrant workers into precarious work arrangements, including inherently exploitative low-wage jobs and positions as unprotected “contractors” in some of the nation’s most dangerous industries.
A worker’s citizenship status has no bearing on whether they are protected by employment laws. However, undocumented workers have effectively gone without labor protections because of the way employers have been empowered to wield immigration enforcement against workers who file complaints or otherwise speak out against abuse and exploitation.
In 2019, Immigration and Customs Enforcement (ICE) carried out one of the largest enforcement actions in U.S. history, detaining 700 migrant workers across seven Koch Foods poultry plants in Morton, Mississippi. According to advocates, these workers were targeted for immigration enforcement because in 2018, Koch Foods was forced to settle a $3.75 million lawsuit for racial discrimination, national origin discrimination, and sexual harassment against Latinx workers in one of Morton’s Mississippi poultry plants. According to the lawsuit brought by the Equal Employment Opportunity Commission, supervisors “touched and/or made sexually suggestive comments to female Hispanic employees, hit Hispanic employees, and charged many of them money for normal everyday work activities.” As reported by Reuters, some undocumented workers at the Mississippi plant alleged in court documents that “supervisors threatened to turn them in to authorities if they spoke out about their concerns.”
According to Sarmiento, despite all of the calls to keep immigrant families together under the Trump administration, there appears to be little public concern regarding how U.S. labor laws trigger family separations.
“For decades, employers have been allowed to punish migrant workers who speak out and every immigration negotiation and compromise that has happened in Congress since 1986 has maintained the framework that says undocumented labor is wrong and needs to be criminalized,” Sarmiento said. “So the DHS announcement is very much a positive step in the right direction, and it’s vindication for workers that have bravely spoken out about abuses and risked deportation. But it’s a first step.”