Labor Secretary Marty Walsh Delegates U and T Visa Certifying Authority to OSHA
February 16th, 2023
For Immediate Release
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ATLANTA - On February 13th, 2023, U.S. Secretary of Labor Marty Walsh signed a memorandum delegating authority to the Occupational Safety and Health Administration (OSHA) to issue certifications in support of applications for U and T Non-immigrant Status visas effective March 30th, 2023.
Sur Legal Collaborative applauds the Department of Labor's decision to delegate certification authority to OSHA. Vulnerable immigrant workers who are victims of workplace safety and health violations are often also victims of crimes and yet they face an uphill battle to obtain certifications from law enforcement agencies for those crimes, particularly in Georgia and other parts of the Deep South.
This is a huge victory for workers across the country, and builds upon the agency’s efforts to build trust amongst immigrant workers, including advocating for deferred action for workers experiencing workplace abuses last July 2022. This announcement comes one month after the Department of Homeland Security (DHS) announced a streamlined process for deferred action applications for deferred action for immigrant workers involved in labor disputes and investigations. Adding to a streak of significant victories, the delegation of U and T visa certification authority to OSHA means that eligible workers can now receive the documentation they need to apply for a more permanent status.
U and T Visas offer victims of specific crimes protection from retaliation based on their immigration status as they help law enforcement detect, investigate and prosecute those crimes . These visas provide immigration status to non-citizen victims, allowing them to remain in the U.S. to assist authorities, and offering a path to permanent status for victims and their close family members. A certification from a law enforcement agency that an individual is a victim of a qualifying criminal activity is a necessary prerequisite for applying for such a visa.
The Wage and Hour Division (WHD) has had U and T Visa Certifying authority since 2011, and it has successfully implemented a process for providing workers who are victims of wage theft and other labor violations that it WHD investigates with U and T visa certifications for qualifying criminal activities and trafficking that occur simultaneously to the civil labor violations. However, WHD has limited itself to certifying for only 8 qualifying criminal activities: witness tampering, obstruction of justice, fraud in foreign labor contracting, trafficking, forced labor, involuntary servitude, extortion, and peonage.
Beginning March 30th, 2023, OSHA will begin accepting certification requests for victims of crimes when the agency has identified qualifying criminal activities during its investigations, including the eight that WHD currently certifies for, as well as murder, manslaughter, and felonious assault. We are grateful that OSHA has taken this critical step in expanding the qualifying criminal activities ,they will certify for but hope that the agency will consider certifying for ALL qualifying criminal activities that can and do occur in the workplace including: abusive sexual contact, blackmail, extortion, false imprisonment, rape, sexual assault, sexual exploitation, stalking, and others.
This delegation of U and T Visa certifying authority to OSHA builds upon the DOL’s recent announcement of a process for requesting Deferred Action for individuals involved in labor disputes, and will serve to build trust amongst immigrant communities so that they no longer need to suffer workplace violations under the fear of deportation. Currently, U visa applicants face lengthy processing times, potentially up to 5-6 years. By supporting access to deferred action manner as a more immediate form of relief, as well as a path to more permanent status and protection from deportation for eligible victims of workplace abuses and their families, the Department of Labor is building an environment of trust and support with immigrant worker communities that will further its crucial enforcement mission to ensure safe and healthy workplaces for all workers in the United States.
In December 2020, shortly after our organization’s founding, Sur Legal Collaborative wrote a memo to the incoming Biden Administration’s Transition Team, led by Chris Lu, at the U.S. Department of Labor specifically asking that, among other necessary protections for immigrant workers, the U.S. Secretary of Labor delegate their U and T visa certification authority to OSHA. On June 22, 2022, a group of 27 worker and immigrant rights organizations, including Sur Legal Collaborative, submitted a letter to the Department of Labor about the need for OSHA to become a U and T visa certifying agency. Later that summer, workers and advocates met with Department officials to discuss the need for protections for migrant and immigrant worker communities, who disproportionately face unsafe working conditions and crimes such as labor trafficking, witness tampering, obstruction of justice, and workplace violence including: battery, assault, sexual assault, and manslaughter, and who are more likely to stay silent due to fear of retaliation.8
All working people, regardless of immigration status, deserve to work in a safe workplace, with a living wage, and the ability to speak up about labor violations without fear of retaliation. Yet, immigrant workers are often taken advantage of by abusive employers who use threats of deportation to prevent workers from asserting their rights. Immigrant workers experience 300 more workplace fatalities and 61,000 more workplace injuries per year than citizen workers. 37% receive less than minimum wage, and 76% experience wage theft. One national study found that undocumented workers experience minimum wage violations at nearly twice the rate of their U.S.-born counterparts in the same jobs. In 2020, immigrant workers made up 65% of worker deaths, and in 2021, 727 immigrant workers from Latin America killed on the job. These disparities can be directly tied to workers’ fear of reporting labor violations; workers who are unwilling to complain about safety violations on the job due to immigration enforcement concerns actually face greater job hazards and higher workplace injury rates. Abusive employers routinely use threats of calls to ICE and the police, implying possible deportation, to prevent immigrant workers from asserting their rights. However, employer threats of retaliation and deportation constitute a federal crime –witness tampering –a qualifying criminal activity that could qualify workers for U visas. Yet this crime, along with sexual assault, trafficking, forced labor, and obstruction of justice, among others, frequently transpire in workplaces where immigrant workers are employed with near impunity. With this delegation of certification authority, workers can now report safety and health violations and crimes, knowing that they will have options to protect themselves from retaliation and deportation.
We look forward to sharing this important news with workers who have suffered in silence for too long. We further look forward to continuing to work with DOL and OSHA to ensure the official certification policy released next month is as broad and expansive as possible by not placing time limits on certifications, allowing all victims, both direct and indirect, to receive certifications, and certifying all crimes that may occur in the workplace
Follow us on Instagram, Twitter, and Facebook @surlegal_atl and LinkedIn at Sur Legal Collaborative to learn more about this policy and other advocacy updates as Sur Legal continues to fight alongside immigrant and working class communities to stop the labor abuse to deportation pipeline in the Deep South!
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Founded in October 2020, Sur Legal Collaborative is a women of color-led and -run immigrant and worker rights nonprofit legal organization working at the nexus of labor, immigration, and decarceration movements in the Deep South.