Migrant Whistleblower Protections

Campaigning for Protections for Immigrant Whistleblowers and Undocumented Workers engaged in labor disputes and cooperating with enforcement agencies

The Issue

The Biden Administration and the Department of Homeland Security’s fails to provide temporary protections for immigrant workers involved in labor disputes, despite the urgency of their situation, unlawfully leaves vulnerable workers at risk of exploitation, deportation, and silenced voices in the fight for labor rights.

Campaign Statement

We are campaigning for stronger enforcement of labor laws and to empower all workers by urging the Biden Administration and its Department of Homeland Security to provide temporary protection from deportation to immigrant workers involved in labor disputes or reporting labor law violations. The exploitation of vulnerable immigrant workers harms all workers, families, and communities. Without protection, immigrant workers are unlikely to report or cooperate in investigations. To improve labor law enforcement in industries that exploit workers and discourage organizing, the Administration should grant confidentiality to immigrant workers applying for deferred action and temporary work authorization during labor disputes. Fear of arrest and deportation deters workers from reporting violations. Effective policy must ensure that the information provided by workers is not used against them once temporary protection ends. We are also campaigning to end illegal immigrant child labor, which impacts tens of thousands of youth every year.

Call for Action

On January 13, 2023, the Department of Homeland Security (DHS) finally responded to demands to increase the availability of immigration protection for workers engaged in labor disputes by issuing new DHS guidelines that may increase the ability of some workers to obtain temporary protection from arrest and deportation by way of “deferred action status” and temporary work permits.

DHS Announcement

DHS Analysis

Overall, the January announcement by DHS is a step forward but falls short in protecting immigrant workers and enforcing labor laws. Although the announcement strengthens existing policies, it does not go far enough. Workers have gained some protections, but there is still more to be won. For workers to have the ability to address unlawful labor practices and act collectively, protection should be available to a significant number of workers, temporary protection information should not be used for deportation, and temporary work permits should be promptly issued. Requiring workers to work illegally while cooperating with government agencies discourages witness cooperation and invites exploitation.

DHS Policy Highlights

It provides general guidelines on how state and local labor law enforcement agencies can submit to DHS “Statements of Interest,” in essence requesting that DHS consider granting certain workers (i) deferred action status (i.e. temporary hold on arrest or deportation) and (ii) the right to apply for temporary work permits. For many years the policy has already been that federal agencies, like DOL, NLRB, EEOC, and DOJ, could make such requests, and did not preclude states from doing so. The announcement simply clarifies who can make such requests, and provides a list of information needed and an email address to submit requests.

DHS has for many years also considered requests for deferred action submitted by immigrant workers involved in labor agency investigations or enforcement actions. The January announcement identifies a “central intake point” to which workers can submit their requests for temporary protection. As was true before, a worker must submit a letter from a government labor agency explaining its mission and how granting a worker protection “relates to the mission of the labor agency,” and why DHS’s consideration of prosecutorial discretion with respect to these specific workers “supports the labor agency’s interest.” The announcement sets out what documents a worker must submit to request deferred action status.

Advocacy to Strengthen Policy

No robust program to provide temporary protection to immigrant workers involved in labor disputes or cooperating with labor law agencies can exist without clear assurance of confidentiality so that the information workers are required provide about themselves and their immediate family members will not be used to later arrest them, or initiate deportation proceedings, or as evidence in deportation hearings. It is well-known that for many immigrant workers the fear of arrest and deportation is the single most important reason they do not report labor law violations, or crimes, or other forms of illegal mistreatment. The failure of current DHS policy to guarantee confidentiality is one of the primary reasons only an insignificant number of immigrant workers are willing to cooperate with labor law agencies.

When immigrant workers have been fired or risk being fired for engaging in labor disputes or cooperating with enforcement agencies, promptly obtaining at least the temporary right to work is critically important. While in a small number of cases DHS has issued immigrant workers work permits relatively promptly, requests for deferred action may take weeks or months to resolve, and work permits another 6-12 months. The announcement restricts “expedited” processing to the rare circumstance in which a labor law enforcement agency is willing to state that getting prompt employment-authorization for a particular worker “is mission-critical” and “goes beyond a general need to retain a particular worker …” Not only is “mission critical” not defined, but in all likelihood the majority of immigrant workers involved in labor disputes need prompt deferred action and work permits to avoid retaliatory firings or employers contacting ICE, rather than this being a policy exception requiring a showing that it is “mission critical” to an enforcement agency. DHS could permit deferred action status approval notices to serve as temporary employment authorization documents while the agency takes several more months to adjudicate formal work permit applications.

Nowhere has DHS made clear what precise information a worker must provide to be granteddeferred action status or the criteria DHS will use to grant or deny such requests. The Januaryannouncement’s accompany Q&A states that workers must submit a letter of interest from alabor law agency, documents such as W-2s, pay stubs, time cards, proof of “identity andnationality,” Form G-325A (Biographic Information), and “[e]vidence of any additionalfactors supporting a favorable exercise of discretion …” Most workers will be afraid toprovide proof of nationality and the information required by the Biographic Informationform about the applicants' and their immediate family members’ immigration status. Inaddition, DHS should explain what “evidence” it considers will support a “favorable exerciseof discretion …” The policy also fails to inform labor law agencies and workers what criteriaDHS will use to approve or deny requests for deferred action status. In almost all other areasthe criteria used by DHS to approve or deny applications are published and well known.

A Worksite Enforcement “guidance” memo issued by DHS on October 12, 2021 (Policy Statement 065-06) states in part that ICE agents should “no longer conduct mass worksite operations and instead refocus our workplace enforcement efforts to better accomplish the [agency’s] goals.” DHS should define what it means by “mass worksite operations.” For example, does it include mass arrests at a worksite based on an I-9 audit? DHS should also modify Section. III.B of its 2016 Memorandum of Understanding with DOL, NLRB, and EEOC which states that ICE may “continue to engage in worksite enforcement activities at a worksite that is the subject of the investigation of a labor dispute” if it determines the enforcement activity is “necessary to advance an investigation relating to … a federal crime,” which could include the misdemeanor crime of illegal entry. This exception to worksite operations during labor disputes should not be used when the only “federal crime” involved is the possible unlawful entry of workers at the site.

Immigrant Child Labor in the U.S.

Child labor is a persistent issue in the United States that annually affects tens of thousands of immigrant children and youth. Immigrant children and youth are almost universally subject to labor law violations and exploitation because they do not possess work permits and are afraid to report or cooperate in the investigation of labor law violations. Immigrant child labor frequently has severe physical and psychological emotional consequences on those abused and exploited on the job.

While recent media reports regarding immigrant child labor have focused on the Office of Refugee Resettlment's placement of unaccompanied minors with unrelated adults who later forced children into exploitative labor situations, these cases are relatively rare and ORR is taking steps to better vet unrelated adults before placing children with them.

On the other hand, thousands of immigrant youth released by ORR to their family members living in the U.S. are daily exploited by unscrupulous employers because they lack employment authorization and are therefore working in underground jobs without labor protections.

In 2022 ORR released over 100,000 unaccompanied children to relatives living in the U.S. In the same year, about 40,000 of these children who were abused, abandoned, or neglected in their home countries, filed petitions with the US Citizenship and Immigration Service (USCIS) applying for Special Immigrant Juvenile (SIJ) status.

In 8 U.S.C. section 1232(d)2 Congress required that USCIS "shall" adjudicate SIJ protections within 180 days. USCIS currently approves 95% of all SIJ petitions and these applicants are generally granted deferred action status (DAS) and may then apply for employment authorization.

However, USCIS routinely fails to comply with the 180-day mandate and therefore delays the ability of young immigrant workers to apply for and receive employment authorization. This unlawful delay takes place despite a permanent junction issued on behalf of all SIJ applicants in the state of Washington in the case of Galvez v. Jaddou, 52 F.4th 821 (No. 20-36052) (9th Circuit, November 3, 2022). The delay in adjudicating thousands of SIJ petitions in states other than Washington is currently being challenged in the case of Casa Libre v. Mayorkas, case number 2:22-cv-01510-ODW-JPR US District Court for the Central District of California).

DHS/USCIS would substantially decrease the illegal exploitation of young immigrant workers by complying with federal law and adjudicating SIJ petitions within 180 days.

DHS/USCIS could further protect young immigrant workers from experiencing labor law violations by granting applicants who file prima facia approvable petitions the right to apply for employment authorization before their petitions are fully adjudicated. DHS/UCSIC already grants victims of trafficking who file approvable visa petitions the right to apply for employment authorization before adjudicating their visa petitions. Extending the same policy to young SIJ petitioners of working age would substantially decrease their exploitation at workplaces and encourage them to report and cooperate in the investigation of labor law violations.

Forms of Immigrant Child Labor

Immigrant child labor takes many forms, including agricultural, domestic, and sweatshop labor. Children in agriculture often work long hours in harsh conditions, putting their health and safety at risk. Domestic work is another common form of immigrant child labor, with children often working as nannies, cleaners, or cooks in private homes. Children who work in sweatshops or factories may be exposed to hazardous materials and dangerous machinery, putting their physical and emotional well-being at risk.

Consequences of Child Labor

The consequences of immigrant child labor can be severe and long-lasting. Children who work are often denied access to education, which can limit their opportunities for the future. Working in hazardous or exploitative conditions can also significantly impact a child's physical and emotional health, leading to injuries, illnesses, and trauma. Immigrant child labor can also perpetuate the cycle of poverty, trapping families in low-paying, exploitative work that provides little opportunity for advancement.

Solutions to Child Labor

Addressing the issue of immigrant child labor requires a comprehensive approach that tackles the root causes of the problem. Some potential solutions include increasing access to education and social services for immigrant families, enforcing labor laws and regulations, and creating pathways to legal status for undocumented immigrants. Advocacy and awareness-raising campaigns can also play a role in highlighting the issue of immigrant child labor and calling for change. DHS/USCIS can reduce the illegal exploitation of young immigrant workers by following federal law and processing SIJ petitions within 180 days. Additionally, granting employment authorization to applicants who file prima facia approvable petitions before their petitions are fully adjudicated could further protect young immigrant workers from labor law violations. Currently, victims of trafficking who file approvable visa petitions are eligible for employment authorization before their visa petitions are adjudicated, and extending the same policy to young SIJ petitioners of working age could reduce their exploitation at workplaces and encourage them to report and cooperate in the investigation of labor law violations.

Congressional Hearings on the Issue of Child Labor for Migrants

April 18, 2023 House Subcommittee on National Security, the Border, and Foreign Affairs

Hearing on Oversight of the Office of Refugee Resettlement’s Unaccompanied Alien Children Program

Witness: Robin Dunn Marcos, Director, Office of Refugee Resettlement, Administration for Children and Families U.S. Department of Health and Human Services

Director Marcos testified how these children are vulnerable to being exploited due to their lack of work permits and legal status. Additionally, USCIS's failure to adjudicate Special Immigrant Juvenile (SIJ) petitions within the 180-day mandate delays the ability of young immigrant workers to apply for and receive employment authorization. Dunn Marcos provides recommendations for how to address these issues, including granting employment authorization to SIJ petitioners who file prima facia approvable petitions and expanding the SIJ program to include individuals up to the age of 25.

Link to video of the hearing. Link to copy of testimony.

April 18, 2023, House Subcommittee on National Security, the Border, and Foreign Affairs, Oversight of the Office of Refugee Resettlement's Unaccompanied Alien Children Program, Witness: Robin Dunn Marcos, Director, Office of Refugee Resettlement, Administration for Children and Families, U.S. Department of Health and Human Services.

Director Marcos provided testimony on the vulnerability of unaccompanied alien children to labor exploitation and USCIS's failure to adjudicate Special Immigrant Juvenile (SIJ) petitions within the 180-day mandate, which delays their ability to apply for and receive employment authorization. Marcos recommended granting employment authorization to SIJ petitioners who file prima facia approvable petitions and expanding the SIJ program to individuals up to the age of 25.

Link to video of the hearing. Link to copy of testimony.

On May 4, 2023, the Subcommittee on Health, Energy and Commerce held a hearing to discuss the oversight of unaccompanied minors by the Department of Health and Human Services (HHS). Witnesses testified on the management of grants and contracts related to the Unaccompanied Alien Children (UAC) program, the quality of care provided to UAC, and the coordination of UAC care across federal agencies. The hearing also discussed the role of the Centers for Medicare & Medicaid Services (CMS) in providing healthcare services to UAC.

Link to press release

Current Child Labor Laws

In recent years, the United States has taken steps to increase protections for minors in the workplace. Congress has made a bipartisan effort to raise the penalties for child labor violations, while state legislatures have raised the minimum age for certain types of work that were previously prohibited for minors. These changes reflect a growing recognition of the importance of protecting children from exploitation and ensuring they are safe and healthy while learning and growing.

To protect minors from harm, the Department of Labor has regulations that prohibit them from working in hazardous jobs that involve heavy machinery, hazardous chemicals, and construction or demolition work. Violating these regulations can result in fines or even criminal penalties for employers. Additionally, minors are subject to restrictions on the number of hours worked and the times of day they are allowed to work.

In some cases, minors may be able to obtain permits to work in certain hazardous jobs under certain conditions. These permits require specific conditions to be met, such as the provision of safety equipment and the presence of a qualified adult supervisor.

Employers have a responsibility to maintain records related to minors they employ and post notices about child labor laws. Workers have the right to report violations of labor laws to the Wage and Hour Division of the Department of Labor.

It is important for employers and workers to understand these regulations to ensure that minors are protected from potential harm in the workplace. By working together, employers and workers can help ensure that young workers are protected and able to learn and grow in a safe and healthy workplace.

Moves to Increase Regulations

In March and April of 2023, several bills and initiatives were proposed to strengthen protections for minors against child labor violations. Reports showed that such violations in hazardous occupations had increased by 70% since 2018. One of the proposed bipartisan bills, introduced by Congresswomen Hillary Scholten and Nancy Mace, would increase the maximum penalty for employers who knowingly violate child labor laws from $13,892 to $50,000 per violation. The bill would also provide additional resources to the Department of Labor to enforce the law and strengthen its authority to investigate and prosecute violations.

The proposed legislation includes provisions to ensure that minors are not employed in hazardous occupations that are prohibited by law, and to require employers to post notices of their child labor obligations in the workplace. In April 2023, Congresswoman Jasmine Crockett and other lawmakers introduced the Child Labor Exploitation Accountability Act, which would prohibit the US Department of Agriculture from engaging in contracts with companies that have violated labor laws or contracted with vendors who have failed to rectify serious labor infractions.

Also in March 2023, the US Departments of Labor and Health and Human Services announced additional steps to tackle child labor violations and strengthen coordination. The agencies will increase training and outreach efforts to educate employers and workers about child labor laws and regulations. Investigations will be increased through collaboration between federal and state agencies, and new resources will be provided to employers and workers, such as information on hazard assessments and safety plans. The agencies will also share data more effectively to target investigations and enforcement actions, aiming to ensure that children are protected from exploitation in the workplace and that employers are held accountable for violations of child labor laws.

Moves to Decrease Regulations

Some state legislatures in the US are proposing or enacting laws that weaken labor protections for young workers, such as allowing them to work longer hours and in hazardous industries. States that have cut funding for agencies that enforce child labor laws include Kentucky, Tennessee, and Wisconsin. The Foundation for Government Accountability (FGA), a Florida-based think tank, is campaigning to rewrite child labor laws to allow more young people to work in hazardous industries, such as logging and roofing, and for longer hours. The proposed revisions include lowering the minimum age for certain jobs, such as operating chainsaws, and allowing more teens to work in jobs that involve driving. Proponents argue that these changes would provide more job opportunities for young people and teach them valuable skills. However, opponents argue that these laws put young workers at risk and undermine important labor protections. States that are enacting or proposing these laws include Arizona, Kentucky, Missouri, Montana, and West Virginia. These actions could potentially harm the safety and well-being of young workers and undermine the progress made in protecting them from exploitation in the workplace.

*Toolkit last updated 2023

Legal Violations & Seeking Legal Assistance

Immigrant workers without documentation who cooperate with state or federal agencies to identify and prosecute labor violations may be eligible for deferred action. This means that they can request temporary protection from deportation and receive work authorization.

Representatives: Use the information below to identify the appropriate agency to assist with a particular labor dispute and to find guidance on requesting certifications in support of applications for U Nonimmigrant Status and Nonimmigrant Status visas from that agency.
Workers: Use the information below to find out where you can report labor violations. If possible, consult an attorney first.
Advocates: Join CHRCL in building a network of agencies, officials, and representatives working to protect immigrant workers.

U.S. Department of Labor

Frequently Asked Questions issued by the Department of Labor (DOL) on July 6, 2022, which can be accessed here. The DOL advised that these FAQs are applicable to these divisions of the Department:

1. Wage & Hour Division (WHD): The WHD enforces
- a. Fair Labor Standards Act (FLSA), which establishes employment standards and regulations to protect workers in both the private and public sector, including minimum wage, limits on child labor;
- b. Family and Medical Leave Act (FMLA),
- c. Migrant and Seasonal Agricultural Worker Protection Act (MSPA) which protects migrant and seasonal workers by establishing employment standards related to wages, houses, transportation, disclosures, and record keeping, and enforcing H-2A standards.
- d. Field Sanitation Provisions of OSHA, that provide standards in agriculture for toilets, potable drinking water, hand-washing facilities.
- e. WHD has the power to issue U and T Visa certifications, as provided here.
2. Occupational Safety and Health Administration (OSHA), enforces the Occupational Safety and Health Act and adopts regulations to set enforcement policy, engages in targeted inspection programs, responds to fatalities, catastrophes, and complaints. OSHA covers most private sector employers and their workers and some public sector employers and workers in the 50 states and some territories.
3. Office of Federal Contract Compliance Programs (OFCCP) holds those who do business with the federal governments as contractors or subcontractors responsible for complying with the legal requirement to take affirmative action and not discriminate based on race, color, sex, sexual orientation, gender identity, religion, national origin, disability, or status as a protected veteran. These contractors are barred from discharging or discriminating against applicants or employees who inquire about, discuss or disclose their compensation to others.
4. Office of Labor-Management Standards (OLMS) enforces the Labor-Management Reporting and Disclosure Act (LMRDA) to ensure basic standards of union democracy and labor management transparency.

Memorandum dated February 13, 2023, issued by DOL Sec. of Labor Marty Walsh gives OSHA the authority to issue certifications in support of applications for U Nonimmigrant Status and Nonimmigrant Status visas, which can be accessed here. The Wage and Hour Division already had such authority.

Equal Employment Oppurtunity

Frequently Asked Questions issued by the Equal Employment Opportunity Commission (EEOC) on February 22, 2023, explain the process for an individual to secure a Statement of Interest/Letter of Support from the EEOC, which can be accessed here. In some cases it is not necessary to file an EEOC charge.
The EEOC enforces Title VII which bars discrimination in employment based on race, color, religion, sex (including pregnancy, transgender status, and sexual orientation), national origin, age (40 or older), disability or genetic information. It also enforces the Americans with Disabilities Act, Age Discrimination in Employment Act, Equal Pay Act, and Pregnancy Discrimination Act.

National Labor Relations Board

The National Labor Relations Board (NLRB) is an independent federal agency with the power to safeguard employees’ rights to organize, engage with others to seek better conditions, decide whether to have union representation, and prosecutes those who violate those rights by committing unfair labor practices as defined by the National Labor Relations Act. The NLRB’s General Counsel Jennifer A. Abruzzo is charged with prosecuting employers who violate those rights, and has taken affirmative steps to provide immigration protection to undocumented and other vulnerable noncitizens, as set forth below, including creating a process for workers and their representatives request a Statement of Support from their local Regional Director. Relevant documents include:

i. General Counsel Abruzzo issued Memo GC 22-01, dated November 8, 2021, entitled Ensuring Rights and Remedies for Immigrant Workers Under the NLRA, can be accessed here. It refers to DHS Secretary Alejandro Policy Statement of Oct. 12, 2021, and based on that “upon request by a charging party or witness, the NLRB will seek immigration relief, including deferred action, continued presence, U or T status, a stay of removal, or other relief as available and appropriate, to protect these workers in the exercise of their statutory rights. It also states that individuals or their representatives can indicate the need for such relief to the NLRB Regional Office involved or to the NLRB’s Immigration Team. It also states that the NLRB will continue to certify requests for U and T petitions for individuals who have been helpful to NLRB investigation or litigation and have suffered harm as a victim of a qualifying crime.
ii. Asst. General Counsel Sullivan issued Operations Management(OM) Memo 22-09, dated May 2, 2022, entitled Ensuring Safe and Dignified Access for Immigrant Workers to NLRB Processes. This can be accessed here. It provides a fact sheet for immigrant witnesses in Spanish and English, and explains that NLRB agents will explain that their immigration status is not relevant to its investigation, that they will not ask workers about their status, and that if the charged party engages in conduct relating to immigration or work authorization status which threatens to undermine the Board’s work, the NLRB’s Immigration Team must be notified.
iii. Gen. Counsel Abruzzo issued Memo GC 21-07 on Sept. 15, 2021, entitled Full Remedies in Settlement Agreements, which can be accessed at this link. This provides that it is crucial in cases involving immigrant workers that the NLRB seek settlement agreements with all possible remedies to ensure that these employees are provided the fullest relief. For example, if the employer’s unfair labor practice causes the loss of an employee’s work authorization, that they seek at the very least a provision requiring the employer to sponsor the affected employee on a non-immigrant visa, and reimburse the employee for legal fees, application fees, and travel costs that the affected employee may incur in seeking to regain a lost work authorization. Additionally, where an employer misused the E-Verify system in an unlawfully discriminatory manner, the Region should require a DOJ training of all its managers and supervisors.
iv. NLRB’s Guidance on Immigrant Worker Rights, explaining that it protects the rights of employees regardless of immigration status can be accessed here.
- 1. It states that where there is an ongoing NLRB investigation or enforcement action at a worksite, and the immigrant worker or their representatives tells the NLRB agent that immigration relief is necessary at that worksite to protect workers who are, or may be willing to cooperate with the NLRB’s investigation or enforcement action, but who may fear for doing so, they can make a request that the NLRB issue a Statement of Interest, which employees can use in requesting deferred action from the DHS. Requests to the NLRB for a Statement of Interest for a particular worksite should be directed to any of the following: (1) NLRB agent investigating the case; (2) the Immigration Coordinator in the Region; (3) the Regional Director; or (4) the NLRB Immigration Team in Washington DC (Immigration.Team@nlrb.gov), including the NLRB case number, worksite location, and the employer’s name.
- 2. It further states that the NLRB will also consider completing U visa and T visa certifications in appropriate cases, and these should be directed to the NLRB Immigration Team (Immigration.Team@nlrb.gov)
v. NLRB Operations Management (OM) Memo 11-62, dated June 7, 2011, by Associate General Counsel Richard Siegel, entitled “Updated Procedures in Addressing Immigration Status Issues that Arise During NLRB Proceedings,” can be accessed here. It notes that where immigration status is one of particular significance, the NLRB may ask DHS’s subagencies (USCIS, ICE, CBP) for U or T visa remedies, or “favorably exercise discretion in order to assist the NLRB in the enforcement of the NLRA”, deferring immigration actions during the pendency of the NLRB proceeding, and/or releasing individuals from custody or providing access to witnesses in custody. This can be accessed here.
vi. NLRB General Counsel Memo GC 02-06, entitled Procedures and Remedies for Discriminates Who May be Undocumented Aliens after Hoffman Plastic Compounds, Inc.
vii. NLRB Notice entitled: Important Information About NLRB Investigations for Immigrant Workers (English) can be accessed here. The Spanish version can be accessed here.
viii. NLRB Know Your Workplace Rights: Immigrant Workers, which states that: (1) immigrants are protected under the NLRA regardless of immigrant status, (2) that the NLRB will not ask them about their immigration status, (3) that the NLRB will not share information with the DHS or ICE, unless they ask it to as part of a request for relief, and (4) that if they tell the NLRB there is a need for protection at a worksite, it may be able to provide documentation to assist them in applying for deferred action or other relief. The card in English can be accessed here.
ix. NLRB maintains a Spanish-language website, which can be accessed here.
x. NLRB also has foreign language: (1) NLRB informational pamphlets in Spanish, Chinese, Haitian Creole, Korean, Russian, Somali, and Vietnamese; (2) one page Immigrant Employee Rights in Spanish, Arabic, Haitian Creole, Korean, Polish, Russian, Tagalog, and Vietnamese ; and (3) EEOC Fact Sheet: Retaliation Based on Exercise of Workplace Rights Is Unlawful in Arabic, Haitian Creole, French, Hindi, Hmong, Korean, Chinese, Portuguese, Punjab, Russian, Tagalog, Urdu, and Vietnamese. These publications can be accessed here.

CA Department of Industrial Relations

CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS. The Department Director is Katie Hagen, and she oversees the work related agencies including the following, which have issued Frequently Asked Questions (FAQs) in response to the DHS guidance of January 13, 2023, explaining how immigrant workers and their representatives can obtain a Statement of Support for the purpose of obtaining deferred action status, a work permit, or other immigration relief.

i. California Labor Commissioner’s Office (LCO), also known as the Division of Labor Standards Enforcement (DLSE), is led by Commissioner Lilia Garcia-Brower is responsible for enforcing labor laws, combatting wage theft, protecting workers from retaliation.
- 1. LCO/DLSE has issued Frequently Asked Questions on LCO’s Role in Supporting Immigration-Related Prosecutorial Discretion, which can be accessed in English here, and in Spanish here.
- 2. The LCO/DLSE handles claims filed in its office, and also maintains a Bureau of Field Enforcement (BOFE) which conducts field investigations of civil and criminal violations of state law affecting groups of workers, including workers compensation fraud, child labor, cash pay, minimum wage and overtime claims. BOFE also has a Public Works Unit that investigates and enforces prevailing wage rates for public construction projects.
- 3. The LCO/DLSE is part of a Labor Employment Task Force (LETF), a coalition of State enforcement agencies that work with local agencies to combat the underground economy, including failure to pay wages and to provide safe and healthy workplaces. LETF has produced an 8 page pamphlet (printable and available for mobile phones) for workers in both English (here) and Spanish (here), which covers such issues as these: (a) rest and meal breaks; (b) minimum wage and overtime; (c) safe and healthy jobs; (d) how to take action without being punished; and (f) benefits in case of injury or unemployment.
ii. California Division of Occupational Safety and Health (DOSH or Cal/OSHA). It conducts inspections and issues citations for hazards and unsafe conditions impacting millions of employees.
- 1. Cal/OSHA issued its Frequently Asked Questions on Cal/OSHA’s Role in Supporting Immigration-Related Prosecutorial Discretion, which can be accessed here for the English, and here for the Spanish. If a worker believes Cal/OSHA has an active inspection or appeal pending with their employer, they can send a request to DOSHStatementRequests@dir.ca.gov with the subject line “Request for Submission of Statement of Interest.” A request may be made by a worker, advocate, or rep and can be for a group of workers.

CA Agricultural Relations Board

CALIFORNIA AGRICULTURAL LABOR RELATIONS BOARD (ALRB) protects the rights of agricultural employees to engage in collective action, with or without a union, to improve their wages and conditions of employment.

i. Workers or their advocates can file unfair labor practice charges with the ALRB if they believe their employer has engaged in unlawful conduct. The charges will be investigated by the General Counsel who may issue a Complaint, triggering a hearing before an ALJ, and a final decision by the Board. The ALRB also conducts elections enabling workers to vote on whether to be represented by a union.
ii. The ALRB issued Frequently Asked Questions (FAQs) on ALRB’s Role in Supporting Immigration-Related Prosecutorial Discretion, which can be accessed here. The ALRB posted FAQs regarding its support of workers in the deferred action process, which can be found here for the English and here for the Spanish.

CA Civil Rights Department

CALIFORNIA CIVIL RIGHTS DEPARTMENT (CRD) enforces state laws that apply to all business practices, including advertisements, applications, hiring, transferring, promoting terminating, layoffs, working conditions, compensation, participation in training or apprenticeship programs, employee organizations, or unions. Among the statutes it enforces are the Fair Employment and Housing Act (FEHA), the California Family Rights Act (CFRA). To date, it has not issued any guidance on how workers or their advocates on the CRD’s role in supporting immigration-related prosecutorial discretion.

LA Model Municipal Program Proposal

Currently, the Department of Homeland Security (DHS) policy does not prohibit municipal agencies from assisting immigrant workers who have experienced violations of local labor codes in applying for DHS deferred action status and work permits. Many cities, including Los Angeles, have established local laws that protect workers by setting wage and hour standards and prohibiting workplace discrimination.

Local departments or agencies may receive complaints from exploited immigrant workers and investigate the claims, after which they may issue letters to DHS requesting that the complaining worker be granted deferred action status and the ability to apply for employment authorization. The Immigrant Whistleblower Project can provide template request letters and support to departments or agencies in Los Angeles, helping immigrant workers receive deferred action status and employment authorization by investigating their claims and submitting letters to DHS.

The Immigrant Whistleblower Project can also provide technical support and template materials to unions, worker organizations, and community-based service providers assisting exploited workers, submitting labor complaints to the city of Los Angeles.

Los Angeles is home to the largest immigrant population of any major city in the United States and has the highest number of immigrant workers. As a result, it has a strong interest in preventing workplace exploitation of both its residents and non-residents. To achieve this, effective enforcement of relevant laws at the local, state, and federal levels is essential. However, many exploited immigrant workers fear cooperating with authorities, which hinders enforcement efforts.

To address this issue, Los Angeles' elected leaders can play a crucial role in advocating for more robust DHS policies that extend protection to immigrant workers who cooperate with agencies enforcing workplace rules. A resolution from the Los Angeles city council urging President Biden and DHS Secretary Mayorkas to strengthen federal protection for immigrant whistleblowers would be appropriate given the large number of low-wage immigrants working in the city. A proposed draft resolution is available at this link.