New Policy Aims to Expand Noncitizen Worker Protections After Historical Discrimination

AILA proudly welcomes this blog post from Diversity, Equity, and Inclusion Committee Law Student Scholarship recipient Taylor Flores, part of a series intended to highlight the important ways in which diversity, equity, and inclusion inform immigration law and policy. More information about AILA’s DEI Committee and its important work is available on AILA’s website 

Initial Deliberate Exclusion of Agricultural Workers from Protections

Various news outlets and workers’ rights groups argue racial discrimination targeted at domestic work and agriculture emerged with the passage of the Fair Labor Standards Act of 1938 (“FLSA”). Even though the FLSA is praised for protecting workers by creating the federal minimum wage, the standardized workweek, and overtime pay as we know it today, it explicitly excluded domestic and agricultural workers from receiving overtime pay protection. Since domestic and agricultural workers at this time were largely people of color, they were unsparingly excluded from these momentous protections.

Economic Dependency on Undocumented Labor and Continued Lack of Protections

Today, about 86% of agricultural workers in the United States are immigrants with an estimated 45% of all agricultural workers being undocumented. Agriculture contributed over $1.2 trillion to the U.S. gross domestic product in 2021, including more than $164 billion from farms alone. Without undocumented labor, agricultural output would plummet an estimated $30 to $60 billion with lasting ripple effects on our economy, such as an increase in food prices and overall loss in domestic agricultural production. Note this only highlights agricultural loss and does not account for economic losses without undocumented labor in domestic work, garment work, and construction and landscaping, among others.

More importantly, undocumented workers are at greater risk for hazardous work conditions, employer retaliation, low wages or wage violations, and workplace infractions in addition to limited access employer-provided health coverage. Undocumented immigrants do not report their employers for these violations out of fear of deportation or loss of work. For a country that has historically condemned and criminalized undocumented migration, it is not a mere coincidence that the U.S. economy relies heavily on the fruits of undocumented labor while providing minimal protection against labor violations. Immigrant workers deserve equal protections regardless of their immigration status.

Movement in the Biden-Harris Administration Immigration Reform: Deferred Action

To address this issue, the Biden-Harris Administration recently enacted a policy to increase protections for certain noncitizens who witness or experience employer labor violations. These workers can now submit labor and employment agency-related requests for deferred action, which is “a discretionary determination to defer removal of an individual as an act of prosecutorial discretion.”  This new policy also streamlines the Department of Homeland Security’s (DHS’s) process of considering deferred action by creating a single intake point for these requests to “support labor agency investigative and enforcement efforts.” These requests from “noncitizens who are in removal proceedings or have a final order of removal” will be forwarded from U.S. Citizenship and Immigration Services (USCIS) to Immigration and Customs Enforcement (ICE) for final determination on a case-by-case basis. The policy is expected to “protect[] noncitizen workers from threats of immigration-related retaliation from [] exploitive employers.”

Policy and Platform Shortcomings

Many human and workers’ rights groups, such as the National Day Laborer Organizing Network and the Economic Policy Institute, consider this policy as an unprecedented victory for undocumented workers and the labor movement and for allowing workers to reclaim their autonomy by no longer being afraid to report employer violations. However, while this new policy is a remarkable step forward for increasing protections for noncitizen workers, there is cause for concern about ICE’s role in the process. Implicit biases are equal or greater in the immigration system compared to the criminal system, which is largely composed of racial profiling (ICE particularly).  These biases affect the government’s exercise of prosecutorial discretion and which immigrants are placed into removal proceedings and deported. If prosecutorial discretion in the immigration system already suffers from implicit biases, how can noncitizens in removal proceedings or under order of removal place their trust in ICE to have final determination to decide their deferred action requests impartially under this new policy?

Furthermore, how can noncitizens expect the Biden-Harris Administration to meaningfully oversee ICE and its final determinations for deferred action? The administration recently passed new border measures in an effort to make the southern border safer. While the policies create new pathways for temporary work authorization for certain immigrants, Venezuelans,  Cubans, Haitians, and Nicaraguans who enter or attempt to enter the U.S. without prior authorization are summarily expelled to Mexico. Even though asylum applications are supposed to be accepted “regardless of how you arrived in the United States or your current immigration status,” President Biden told Cubans, Haitians, and Nicaraguans to “[s]tay where you are and apply legally from there.” This does not sound like the president whose immigration platform pledged to “welcome immigrants in our communities.”

Celebrate the Small Victories

Even though the deferred action policy for labor and employment agency-related requests has room for improvement, the significance of this new policy for noncitizen workers is undeniable. For now, we must take a moment to acknowledge and celebrate this historic win in the labor movement. Hopefully, this policy is only the beginning in expanding legal and permanent protections for noncitizen workers.