Victims of human trafficking and other workplace crimes will have a tougher time getting visas certified by the Labor Department under a policy issued July 1.
The DOL Wage and Hour Division is retreating from an Obama-era initiative by instituting a more thorough process to certify U and T visas. The permits protect undocumented workers who have suffered “severe” mental and physical abuse and are frequently willing to help put traffickers and law-breaking employers behind bars. The visa certifications are a crucial first step before workers submit applications for temporary legal status to the Homeland Security Department for a final decision.
Labor Department regional offices will now refer applications to a separate criminal law enforcement agency, such as a local police department, before the DOL certifies that the person seeking the visa is the victim of a crime covered by the U or T programs. The department will then consider if the outside agency is in a better position to take control of the certification decision or will wait for that law enforcement agency to concur that a crime covered by the visa program has occurred. The DOL will decline certification if the law enforcement agency informs the department that it doesn’t believe such a crime has taken place.
The new policy represents a significant change, likely to prolong the waiting period for visa applicants or discourage workers’ attorneys from seeking the Labor Department’s assistance entirely. It comes after the DHS last year said it would start referring rejected U and T visa seekers for potential deportation.
The department issued the field assistance bulletin clarifying its approach to visa certifications “as an opportunity to protect victims and potential victims through the proper role of the agency,” a DOL spokeswoman told Bloomberg Law. The department is currently reviewing “less than two dozen applications” for visas, which have been sent to regional offices for processing in accordance with the new policy, she said.
The agency frames the memo as consistent with the Trump administration’s crusade against labor traffickers, which the president and his daughter Ivanka Trump have repeatedly emphasized. But by hampering the agency’s ability to efficiently process the certification requests, Wage and Hour chief Cheryl Stanton’s policy may wind up having the opposite effect: eliminating potential witnesses who want to assist law enforcement in prosecuting traffickers.
“WHD is issuing this addendum to ensure that WHD focuses on actionable complaints within its authority and that the appropriate criminal law enforcement agency is engaged in the process,” the guidance states. “The referral to criminal law enforcement for investigation and prosecution is critical—not just to protect an individual—but every other individual who is a potential victim.”
Criminal law enforcement agencies are already authorized to certify U and T visas directly. It’s not clear whether workers’ attorneys will have an incentive to continue to send requests to the WHD when they can instead go straight to the law enforcement agency to which the division will now need to refer the claim.
Memo Follows Visa Freeze
Stanton, who arrived as the WHD administrator two months ago, released the guidance. It will technically allow her agency to resume approving the visa certifications following a seven-week moratorium. But Stanton’s new policy imposes extra layers of bureaucracy on the certification process, which will have the likely effect of limiting the Labor Department’s role in aiding victims’ chances at getting their visas granted by the DHS.
“The effect of the addendum is likely to discourage legitimate U and T visa applicants from requesting a certification from the Wage and Hour Division,” Michael Hancock, a WHD assistant administrator in the Obama administration, said in an email. “It creates hurdles that do not currently exists that will create significant delays in a process that is often time sensitive,” but without adding any value to the process, he said.
Since 2015, the WHD has been able to certify or deny claims that employees were in fact victims of one of eight types of workplace crimes—such as forced labor, witness tampering, and extortion—for U visas or were illegally trafficked to the U.S. for T visas. For both visa programs, the agency would generally grant certifications to workers if they were willing to cooperate with law enforcement agencies in their investigations and prosecutions.
Stanton’s new policy is intended to provide clarity to agency investigators and outside stakeholders who have been on standby about the status of the U and T programs. She froze her agency’s ability to certify the visas shortly after joining the department. However, the policy change could be seen by immigrants’ rights advocates as the Trump administration’s latest move to deny pathways for immigrants crossing the border to gain lawful status—in this case to some of the most vulnerable workers in the country who would be willing to help the White House fulfill its stated mission of combating human trafficking.
Many advocates say the Labor Department’s previous certifications have provided a critical lifeline for their clients, who face constant threats of retaliation and deportation from their employers. This includes attorneys who say they weren’t always pleased with the agency’s outcome because the Wage and Hour Division’s thorough investigations would sometimes result in a denial for their clients.
Workers can still petition other law enforcement agencies to certify their claims, but they have often relied on the Wage and Hour Division investigators. The division’s focus on probing low-wage workplaces for signs of wage abuse means they regularly encounter undocumented workers who are fearful of participating in an investigation.
The division during the Obama administration 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 applications up the hierarchy to regional administrators, Labor Solicitor’s Office attorneys, and for a final signature from a senior career official at the national office.
Unlike the U visa process, Homeland Security’s U.S. Citizenship and Immigration Services doesn’t require an agency certification before considering T visa applications for trafficking victims. But USCIS does give applications with certifications “significant weight,” according to the Wage and Hour Division’s 2015 guidance on T and U visas.
Prior to new policy, the WHD would exercise its authority to certify T visa applications if the agency detected “severe” trafficking, provided the activity arose in the workplace context and there was a credible allegation of a violation of a law that the WHD is charged with enforcing.
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(Updated to include comments from Labor Department spokeswoman.)