I was recently reviewing a matter for a prospective client when it became clear to me that he was being taken advantage of, actually exploited, very terribly, by his employer. (What’s worse, his attorney seemed to be “in on it,” and though that too is very terrible, I will discuss that in a separate piece that speaks to egregious conduct by some immigration attorneys with respect to their clients.)
Immigrant workers are among the most vulnerable in the employment world, particularly if they are undocumented. They may worry about speaking up for themselves in the workplace, and as a result, endure inappropriate employer conduct, possibly even an unsafe work environment, to name just a couple of many possibilities.
Language barriers and documentation issues make it easy for some unscrupulous employers to take advantage of immigrant workers. Quite simply, immigrant employees are more likely to face workplace safety issues and other employment law violations than their citizen employee counterparts.
Fortunately, immigration policies rolled out by the Department of Homeland Security (“DHS”), effective in January 2023 (without much fanfare I must say), can help protect vulnerable immigrants from the misconduct of their employers.
We all know that whistleblowers are those individuals who report employer misconduct within a company or to government authorities. Generally speaking, they are given legal protection under state and federal law from employer retaliation or punishment. The problem is, many may not know their rights, particularly those who are undocumented and those with language barriers.
Historically, and still in some cases even today, immigrants may actually face removal from the United States because of their choice to report employer misconduct. For example, if Immigration & Customs Enforcement (“ICE”) learns about undocumented workers at a workplace, even where they are reporting employer misconduct, ICE may attempt to remove / deport these undocumented (and yet courageous) workers from the United States. Some employers actually leverage this fear of removal by threatening workers with retaliation if they complain about safety or other issues.
Effective January 2023, DHS has said that noncitizen workers who are victims of, or witnesses to, the violation of labor rights, can use a streamlined and expedited process for what is called “deferred action.”[1]
Deferred action is a form of “prosecutorial discretion,” where DHS can choose to defer removal of, for example, an undocumented worker, for a certain period of time. Although deferred action does not confer lawful status, it does allow a noncitizen to be lawfully present in the United States for certain limited purposes and, importantly, under current rules, a noncitizen granted deferred action can also apply for employment authorization for the period of deferred action if they can demonstrate “an economic necessity for employment.” If deferred action is granted by DHS, the period of deferred action and employment authorization will generally be for a period up to four years.
Although deferred action is not a permanent solution for, e.g., an undocumented worker, it can protect noncitizen workers from threats of immigration-related retaliation from exploitive and unscrupulous employers. Using this process, immigrants who report workplace safety violations have protection from employer retaliation. As of January, 2024, DHS announced that it had protected over one thousand workers.
Although there’s so much more work to do in terms of immigration reform, DHS’s policy of providing this discretionary relief is a win-win. It increases the ability of state and federal labor and employment organizations and agencies to investigate workplace misconduct and violations, while at the same time protecting both U.S. and foreign worker (including vulnerable undocumented workers) from abusive employers.
[1] To request deferred action, the noncitizen requestor must submit, among other things, the following: (a) a written request signed by the noncitizen stating the basis for his or her deferred action request; (b) a Statement of Interest from a labor or employment agency addressed to DHS supporting the request; (c) evidence to establish that the noncitizen falls within the scope of workers specified in the Statement of Interest, such as W-2s, pay stubs, time cards, and/or other relevant documentary evidence; and (d) evidence of any additional factors supporting a favorable exercise of discretion by DHS.