A new visa rule is supposed to protect immigrant workers. It may not go far enough

A new Occupational Safety and Health Administration (OSHA) rule will allow the agency to issue visa certificates to immigrant workers who’ve been subjected to labor rights violations like wage theft or labor trafficking.

A first for the agency, this new rule will offer undocumented workers protection from immigration-related retaliation from employers and allow them to maintain lawful status under a U or T visa applicant in the U.S., while OSHA investigates and prosecutes illegal workplace practices.

U and T visas provide immigration status to non-citizens, allowing them to remain in the U.S. to assist authorities in investigating crimes in which they were victims and offering a path to permanent status for victims and their close family members. A certification from a law enforcement agency (like the FBI or Department of Homeland Security), prosecutors or judges involved in a criminal investigation identifying that an individual is a victim of a qualifying criminal activity (i.e., abduction, domestic violence, sex trafficking, etc.) is mandatory to apply for the visas.

With this new authority, OSHA will be able to issue the same certification for victims of qualifying crimes during its workplace safety investigations, giving workers a secure reassurance to report workplace safety and health issues without fear of prosecution or deportation. So long as the issue reported is considered a qualifying criminal activity, undocumented workers have a chance to apply for legal immigration status and employment authorization through the U and T visas with these certifications.

The policy change has been hailed as empowering and celebrated for expanding protections for immigrant workers. But it doesn’t fix underlying issues at the heart of the immigration system because OSHA’s bureaucratic change neither guarantees a visa nor changes anything about the immigration process.

While Anna Hill Galendez, supervising attorney for Michigan Immigrant Rights Center, recognizes how crucial of a step this decision is to acknowledge and address the fear of retaliation, she noted that not all workers subject to unsafe working conditions will qualify for U or T visas, which only cover victims of certain serious crimes.

“And processing times, particularly for U-visas, can take several years,” Galendez stated in an email response.

For example, the Department of Labor’s Wage and Hour Division (WHD), who’s had U and T Visa-certifying authority since 2011, only considers eight types of qualifying criminal activities for visa certification: witness tampering, obstruction of justice, fraud in foreign labor contracting, trafficking, forced labor, involuntary servitude, extortion and enslavement.

In a press release, Sur Legal Collaborative – a legal nonprofit based in Atlanta, GA – stated its hope that OSHA will “consider certifying for all qualifying criminal activities that can and do occur in the workplace including abusive sexual conduct, blackmail, extortion, false imprisonment, rape, sexual assault, sexual exploitation, stalking and others.”

To broadly assist workers in seeking more immediate immigration protections, Galendez explained that OSHA and state OSHA plan agencies should quickly issue Statements of Interest – letters in support of a request or petition for immigration-related prosecutorial discretion to DHS – for temporary immigration relief when investigating workplaces with immigrant workers.

“Ultimately, in order to create safer and healthier workplaces, we need to address the underlying injustices of our immigration system that leave so many workers vulnerable to labor abuses,” said Galendez.

She advised that a bureaucratic change like this should be coupled with informed investigative practices that allow immigrant workers to share information in their native language (accompanied with strong confidentiality protections) and training OSHA investigators to detect workplace crimes and trafficking.

It’s worth noting that immigrant workers experience more workplace fatalities and over 60,000 more workplace injuries per year than U.S. citizen workers. They also experience nearly twice the rate of minimum wage violations in comparison with U.S. born residents in the same jobs.

Only after March 30th, 2023, when this new rule takes effect, will the country be able to determine whether this is indicative of a major victory for immigrant workers or if the rule falls short of its goals.