October 13, 2021
In a major policy shift to help illegal immigrants in the U.S. workforce, the Biden administration is ordering the Department of Homeland Security (DHS) to end mass worksite enforcement operations that often result in large-scale arrests and deportations of undocumented employees. The administration is also directing agencies that operate under DHS, which was created after 9/11 to counter terrorism, secure borders and uphold the nation’s economic security, to protect foreigners working in the country illegally by shielding them from removal proceedings when they get caught.
The administration describes them as “noncitizen victims” and it wants to “ensure” that that they are not placed in immigration proceedings when the businesses that hired them are investigated. A memorandum issued this week by DHS Secretary Alejandro Mayorkas directs Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS) to assist illegal immigrants by taking actions to promote a fair labor market and support more effective enforcement of wage protections, workplace safety, labor rights, and other employment laws and standards. “The agencies must also develop strategies for prioritizing workplace enforcement against unscrupulous employers and, through the exercise of prosecutorial discretion, facilitate the participation of vulnerable workers in labor standards investigations,” according to the three-page memo.
The document, which is titled “Worksite Enforcement: The Strategy to Protect the American Labor Market, the Conditions of the American Worksite, and the Dignity of the Individual,” instructs DHS agencies to develop plans to alleviate or mitigate the fear that victims of, and witnesses to, labor trafficking and exploitation may have regarding their cooperation with law enforcement in the investigation and prosecution of unscrupulous employers. “These plans 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,” the Mayorkas order states. “In addition, these plans should provide for the assistance noncitizen victims and witnesses need to participate actively in the investigations and consider ways to ensure that noncitizen victims and witnesses generally are not placed in immigration proceedings during the pendency of an investigation or prosecution.”
Federal officials at the DHS conglomerates are also instructed to identify existing or potential policies that have an impact on the umbrella agency’s role in the enforcement of employment and labor standards. This includes ICE’s worksite enforcement strategy, a Memorandum of Understanding (MOU) between DHS and the Department of Labor (DOL) and other policies that “may impede non-citizens workers, including victims of forced labor, from asserting their workplace rights.” The DHS secretary also directs the agencies to identify measures that ensure E-Verify, the government’s system to certify that employees are authorized to work legally in the U.S, “is not manipulated to suppress unauthorized workers from, or to punish unauthorized workers for, reporting unlawful labor practices such as substandard wages, unsafe working conditions, and other forms of worker exploitation.”
Under a bold header titled “Immediate Guidance” Mayorkas orders American federal agents to “cease mass worksite operations” and consider prosecutorial discretion—the authority to decide not to enforce the law against certain people—for workers who are victims of, or witnesses to, workplace exploitation. “The deployment of mass worksite operations, sometimes resulting in the simultaneous arrest of hundreds of workers, was not focused on the most pernicious aspect of our country’s unauthorized employment challenge: exploitative employers,” the DHS secretary memo states. “These highly visible operations misallocated enforcement resources while chilling, and even serving as a tool of retaliation for, worker cooperation in workplace standards investigations. Moreover, such operations are inconsistent with the Department’s September 30, 2021 Guidelines for the Enforcement of Civil Immigration Law and the individualized assessment they require. Given these concerns, please ensure we no longer conduct mass worksite operations and instead refocus our workplace enforcement efforts to better accomplish the goals outlined above.”