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A Snitch in Time Saves How Many? – Incentivizing Noncitizens to Report Employment Law Violations


A Snitch in Time Saves How Many?  – Incentivizing Noncitizens to Report Employment Law Violations

“I generally avoid temptation unless I can’t resist it.”  ~ Mae West

The Biden Administration has long sought to incentivize noncitizens who suspect that an employer may be violating laws protecting worker rights to report perceived violations to federal authorities.  The Administration tried this early last year by including such incentives in the Senate and the House bills known as the “U.S. Citizenship Act of 2021.”  See, “Beware the Employer Risks Nesting in President Biden’s Comprehensive Immigration Reform Bill.”

Failing to muster sufficient votes for enactment, the Administration, through the Secretary of Homeland Security, Alejandro Mayorkas, issued on October 12, 2021 Policy Statement 065-06, “Worksite Enforcement: The Strategy to Protect the American Labor Market, the Conditions of the American Worksite, and the Dignity of the Individual,” to the three federal immigration agencies within DHS.  One “important interest” to be fostered under the new worksite enforcement strategy is to “[increase] the willingness of workers to report violations of law by exploitative employers and cooperate in employment and labor standards investigations.”

Policy Statement 065-06, by its terms, is motivated by the Feds’ desire that noncitizens, without fear of retaliation or personal endangerment, freely report “unlawful labor practices such as substandard wages, unsafe working conditions, and other forms of worker exploitation.”  It includes this element:

Develop agency plans . . .  [which] should, among other things, provide for the consideration of deferred action, continued presence, parole, and other available relief for noncitizens who are witnesses to, or victims of, abusive and exploitative labor practices. In addition, these plans should . . .  Ensure that noncitizen victims and witnesses generally are not placed in immigration proceedings during the pendency of an investigation or prosecution.

To buttress this effort, Secretary Mayorkas included “Immediate Guidance” to the three immigration agencies within the Department to entertain requests by the Department of Labor (DOL) that “DHS consider whether to exercise prosecutorial discretion on a case-by-case basis for workers who are victims of, or witnesses to, workplace exploitation.”

This week, DOL seized upon the opportunity by issuing a July 6, 2022 FAQ outlining its “Process for Requesting Department of Labor Support for Requests to the Department of Homeland Security for Immigration-Related Prosecutorial Discretion During Labor Disputes.”  The new process invites “workers,” including “vulnerable workers who lack work authorization or sufficiently ‘portable’ immigration status,” to report “a labor dispute with my employer” and “and request that DOL in the exercise of its discretion to submit a ‘Statement of DOL Interest’ in support of a request to DHS for immigration-related prosecutorial discretion.”

Among the forms of immigration relief cited by Secretary Mayorkas to tease out noncitizen reports of labor violations is “deferred action.”  DHS defines deferred action under 8 CFR §274a.12 (c)(14) as “an act of administrative convenience to the government which gives some cases lower priority.”  The carrot of deferred action is that it entitles a noncitizen to apply for and receive a work permit if s/he “establishes an economic necessity for employment.”  Another discretionary power highlighted in DHS Policy Statement 065-06 is parole (which would allow a noncitizen abroad to enter the U.S. , or if already here, to remain, and in both situation to obtain a work permit).  Still another instruction in Policy Statement 065-06 requires immigration officials to ensure “that noncitizen victims and witnesses generally are not placed in immigration proceedings during the pendency of an investigation or prosecution.”

The upshot of these developments is  a modern system of “bounty” hunting – the bounty being a work permit and a free pass enter or remain in the U.S. and avoid deportation – privileges available to noncitizens who report to DOL, which then reports to DHS, perceived instances of “worker exploitation.”

The message to employers is clear: Behave and beware.  The message to noncitizens eyeing the bounty is equally clear: Don’t mess with the Feds unless you can put up or shut up.


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