Advocates celebrated on Feb. 13 when the U.S. Occupational Safety and Health Administration announced they would be issuing U-Visa certifications in support of undocumented workers who experienced workplace abuses. But soon, they learned that a key element was missing: wage theft, an issue that affects tens of thousands of workers in New York State per year, would not qualify.
“We most certainly wish that the DOL would consider wage theft as a qualifying crime for U- and T-Visa certifications,” said Charlie Uruchima, program coordinator with New York Committee for Occupational Safety and Health. “Not only would treating wage theft as a crime protect workers, but it would deter unscrupulous employers from stealing wages in the first place.”
U-Visas are highly coveted, with the 10,000 cap being reached every year since 2011. Once obtained, an undocumented immigrant is given a work permit and protection from deportation. Additionally, after three years they can apply for a green card and after five years they can apply for citizenship. Yet, the application process can take several years and the current visa backlog as of 2021 has swelled to an enormous 170,000 applicants who are still in limbo. T-visas, reserved for human trafficking victims, are excluded from the resolutions.
On Oct. 4, 2022, the New York State AFL-CIO and the New York City Central Labor Council, which together represent 2.5 million workers in 3,000 affiliated unions across New York, unanimously supported adopting resolutions to have victims of wage theft qualify for U-Visa status. They also supported removing the yearly 10,000 cap.
Currently, President Biden has the executive authority to provide temporary status protections, known as “deferred action” and work permits for undocumented workers. In January, under the direction of the Biden administration, the U.S. Department of Homeland Security offered undocumented workers protections from deportation if they were victims of labor law violations.
However, the protections are not permanent, lasting for up to two years, and can be revoked at any time. Congress ultimately has the authority to make those protections permanent as well as lift the visa cap.
Responding to Documented’s request for comment regarding the inclusion of wage theft as a qualifying crime, James Lally, public affairs specialist at the DOL stated that they defer to the guidelines set by Congress.
“In order to make a certification, DOL assesses whether a particular type of conduct falls within the categories established by Congress on a case-by-case basis,” he said.
As a means of securing permanent protections for undocumented workers, labor unions such as the AFL-CIO and SEIU in conjunction with groups such as the National Employment Law Project have supported the Protecting Our Workers from Exploitation and Retaliation (POWER) Act.
The bill, introduced by Representative Judy Chu of California in March, would make many of the DHS deferred action protections codified into law. In addition, it would remove the caps on U-Visas, and expand U-Visa eligibility to include wage theft.
“Before DHS’s announcement, employers knew immigrant workers may be too afraid to report labor abuses to the appropriate authorities or provide relevant evidence or testimony to labor agencies on ongoing investigations,” said Rep. Chu in a statement. “The POWER Act would build on and codify DHS’s new policy so that we can permanently put an end to threats to immigrant workers and improve workplace conditions for all Americans.”
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Shannon Lederer, director of Immigration Policy for the AFL-CIO, says if the legislation passes it would give undocumented workers the leverage they need to fight back against exploitation.
“The POWER Act prevents immigration enforcement from being used as a tool to crush worker organizing and protects the brave folks who take a stand to help enforce the labor laws our movement fought so hard to win.”
In many ways, the construction trade unions have been slow when it comes to embracing undocumented workers into their ranks. Historically, the City’s trade unions were exclusive clubs reserved for only white workers. When it came to undocumented labor, the attitude was outright hostile, with some unions reporting undocumented workers to ICE.
Throughout the 1980s and 1990s, the AFL-CIO advocated for stronger immigration enforcement, seeing undocumented workers, with the low wages they are often paid as a threat to organized labor’s ability to demand higher wages.
By the turn of the century, national labor unions had a change of heart and began embracing undocumented workers. In New York, over the past two decades, the trades have increasingly diversified, with minorities now making up the majority of union construction rank and file at 55.1 percent.
Still, with many unions requiring proof of work authorization and other documentation, undocumented workers have not made the same progress with the trades even though the construction industry has grown increasingly dependent on their labor.