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Human Trafficking Victims Blocked from Visas by Trump Wage Boss

June 24, 2019, 10:15 AM

The Trump administration has stalled a critical pathway to protect vulnerable workers, thanks to a new Labor Department moratorium on processing visa applications for victims of human trafficking and other egregious workplace crimes.

Cheryl Stanton, who assumed office April 29 as head of the Labor Department’s Wage and Hour Division, in early May suspended her agency’s role in certifying visas that grant temporary status to immigrants who were illegally trafficked to the U.S. or face other forms of severe mental and physical abuse. Delays in processing the visas protecting people who aid law enforcement could step on White House efforts to combat trafficking, but may also be seen as advancing the administration’s emphasis on curbing the flow of undocumented immigrants.

Stanton revoked authorities previously delegated to career officials, including the power to approve the visas. That’s created a backlog of time-sensitive applications from across the country. Stanton has yet to sign a single application, even though they’ve been approved by regional offices and DOL attorneys, Bloomberg Law reported June 19.

The freeze has been in place for more than six weeks, during which Stanton has been sitting on applications for U visas for victims of eight types of crimes uncovered in workplace investigations—including forced labor, extortion, and witness tampering—as well as for T visas for trafficked workers. Wage and Hour Division offices recently started receiving inquiries from workers’ attorneys as to whether they can still count on the agency to review their clients’ applications before they’re sent to the Homeland Security Department for a final decision.

The majority of the WHD administrator’s role involves guarding workers’ paychecks by regulating and enforcing wage laws. But whether intentional or not, Stanton’s heightened review of agency field operations has entangled her in Trump administration immigration policies that risk alienating her from both worker advocates and the White House just a few days shy of her two-month anniversary in office.

“I certainly don’t think there’s a practice of granting these certifications too easily. They are very thorough investigations,” said Chris Williams, co-director of the National Legal Advocacy Network, where he’s successfully filed applications for U visas with the agency’s Chicago regional office. “Whats distressing to me is why are you taking a program that’s working and essentially taking it to a standstill?”

Immigrant workers’ attorneys interviewed by Bloomberg Law described the Wage and Hour Division’s participation in U and T visas as a lifeline to their clients. They say past U and T visa seekers are desperate for protection from abusive managers who have shown up at a worker’s home posing as an ICE agent, threatened to kill workers’ families, or trapped workers on a job by confiscating their passports and physically assaulting them.

Stanton, in a statement provided to Bloomberg Law, was noncommittal about her agency’s future involvement in the visa process.

“As the new head of an agency, I am reviewing all the programs and processes administered by the Wage and Hour Division, in consultation with appropriate DOL agencies,” said Stanton, a former business lawyer and South Carolina employment agency director. “I remain committed to strong enforcement of WHD laws using all resources efficiently, responsibly, and to the extent authorized.”

For certain routine investigative procedures, Stanton has gradually been restoring authority to her regional administrators, according to DOL sources. But the U and T visas remain on a wider list of agency policies she inherited from the Obama administration that Stanton continues to halt.

A Nonpartisan Issue

Both visa programs are generally reserved for immigrant workers who are willing to cooperate with law enforcement in the investigation or prosecution of a crime. Stanton’s move to block the applications could put her in conflict with the Trump administration’s focus on combating human trafficking in the U.S. and abroad. This effort was most recently highlighted June 20 at an event featuring Secretary of State Michael Pompeo and the president’s daughter and adviser Ivanka Trump.

The president has made getting tough on labor traffickers a core element of his law enforcement agenda. He’s signed an executive order and a package of bills, while holding listening sessions with advocates, all designed to end the form of modern slavery across the globe. As part of what the White House billed as Human Trafficking Awareness Month in January, Trump reauthorized the Victims of Trafficking and Violence Protection Act, the 2000 law that established U and T visas and designated certifying authority to the Labor Department.

But legal aid advocates and some conservatives are now concerned that a prolonged delay in processing the visa applications means crucial witnesses will no longer be available to help put traffickers behind bars.

“I don’t see this as a political issue. Everybody believes in solving crimes. We don’t believe that people should be trafficked. We understand that when somebody is undocumented they can potentially be exploited,” said Jacinta Ma, director of policy and advocacy at the center-right National Immigration Forum. “It’s going to be very difficult to access those witnesses who can tell you about serious crimes or trafficking” without the U and T visas.

Homeland Security’s U.S. Citizenship and Immigration Services, which grants or denies U and T visas after they’ve been certified by the WHD and other agencies, didn’t provide a comment.

Representatives for the White House and Ivanka Trump also didn’t comment on Administrator Stanton’s actions.

Obama-Era Initiative

The Labor Department began asserting its authority to serve as a U visa certifier in 2011, before adding T visas to the program in 2015. The department’s Wage and Hour Division probes workplaces for evidence of minimum wage and overtime violations, with an emphasis on low-wage industries that are likely to employ vulnerable workers.

DHS began relying on the division as one of its certifying agencies because investigators are frequently the first law enforcement contacts to find evidence that immigrant workers are being exploited.

Legal aid attorneys regularly have to work hard to convince undocumented workers to file a claim with the WHD for alleged payroll violations, because of concerns about deportation. They said the agency’s ability to also certify a T or U visa was particularly valuable when compared to pre-2011, when the Labor Department had no role in the process.

“We found that going to traditional law enforcement agencies to try to seek these types of certifications for workplace abuses was hard,” because they had little experience dealing with labor trafficking and other workplace crimes, said Stacie Jonas, managing attorney of the human trafficking team at Texas RioGrande Legal Aid. “Increasingly we realized that agencies that were already working in the area of workplace enforcement, who understood these visa programs, could much more easily jump in and relate to our clients.”

The Wage and Hour Division built a complex infrastructure to train investigators on the U and T system, designate people in each of the five regional offices to coordinate the certification inquiries, and determine the validity of the claims. It eventually filtered the applications up the hierarchy to regional administrators, Solicitor’s Office attorneys, and a final signature from a senior career official at the national office.

Stanton’s intervention brings all that work to a “screeching halt,” said Michael Hancock, who was a WHD assistant administrator under President Barack Obama.

“There was a well worked out system of checks and balances. And now the message being sent from the national office is we don’t prioritize U visas, we don’t prioritize T visas,” said Hancock, who is now an attorney for workers at Cohen Milstein in New York.

A Labor Department spokeswoman declined to provide the number of visas the agency certifies per year, citing privacy concerns. However, USCIS publicly discloses its processing data, showing nearly 600 T visas and 10,000 U visas granted in fiscal year 2018.

Fraud Concerns

Although a freeze on WHD certifications to combat trafficking may conflict with one bucket of Trump administration policy, it could also advance a more prominent White House agenda item—limiting the number of undocumented and legal immigrants.

“Many law enforcement agencies in sanctuary districts will issue U and T visa certifications to anyone who they believe may be subject to removal from the United States, even when such individuals have not provided any information useful in the detection, suppression or prosecution of crime,” Matthew O’Brien said via email. O’Brien is the research director at the Federation for American Immigration Reform, which supports reducing immigration, and is a former chief of the national security division at USCIS.

“DOL’s recent moratorium on the processing of U and T certifications appears to be an attempt—consistent with the Trump administration’s immigration priorities—to suppress abuse of the U and T programs by ensuring that they are administered in a manner consistent with the relevant statutes,” he said.

Even if Stanton restores her agency’s approval of the visas, workers face a long wait thanks to a steep backlog of cases at USCIS.

But for advocates who appreciated in the past few years being able to turn to the Labor Department for an initial government endorsement that the workers’ are in fact being exploited, the division’s pause is creating a new sense of agony.

“Those applications take a very long time to get processed,” said Jonas of Texas RioGrande Legal Aid. “If you slow up the very beginning of even issuing certification that’s just going to contribute to that problem.”

To contact the reporter on this story: Ben Penn in Washington at bpenn@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com