A short, three-page internal memorandum issued on Oct. 12 by Department of Homeland Security Secretary (DHS) Alejandro Mayorkas, didn’t arrive with much fanfare. But the new guidance nonetheless marks a monumental change of course—packing the potential power to fundamentally alter the way undocumented people have been treated in the workplace for nearly four decades.
“This announcement yesterday represents a transformational change to the way that the federal government has been enforcing immigration laws in the workplace,” says Marielena Hincapié, executive director of the National Immigration Law Center (NILC). “Frankly, this is a change from the last 35 years.”
The memo immediately halts immigration raids on workplaces and calls on enforcement agencies to instead focus their efforts on “unscrupulous employers who exploit the vulnerability of undocumented workers.” It also directs the federal immigration agencies to develop plans to protect workers who come forward with allegations of abuse or exploitation by employers.
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The guidance, in other words, not only shifts the focus of immigration enforcement away from individual workers and onto their employers, but also asks agencies to provide overt protections for undocumented employees who report abusive workplaces. It’s the first time since Congress passed immigration reform measures in 1986 that a presidential administration has explicitly directed immigration agencies in this way.
Mayorkas’ memo requests that Immigration and Customs Enforcement (ICE), U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Protection (CBP) develop and present plans in the next 60 days that would “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 protections could look like delaying removal orders, parole, or other forms of relief, including ensuring that “noncitizen victims and witnesses generally are not placed in immigration proceedings during the pendency of an investigation or prosecution,” according to the memo.
A ‘monumental’ change of course
Congress’s 1986 immigration reform measures made it technically illegal for employers to knowingly hire undocumented workers. But because immigration enforcement efforts remained focused on workers, and failed to provide robust worker protections, undocumented individuals remained in the federal crosshairs, Hincapié explains. Shifting that focus, she says, is what makes this new guidance “monumental.”
For decades, businesses have mostly eluded consequences for their hiring practices, and exploitative employers have gotten away with withholding wages and other more severe abuses, using the threat of deportation against potential whistleblowers.
“Immigrants have been retaliated against, or scapegoated or threatened with deportation,” says Kerri Talbot, deputy director at Immigration Hub, an immigrant advocacy organization. “It’s really a huge improvement to have the agency recognizing that and moving forward on trying to create some important protections.”
The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), the largest federation of labor unions in the U.S., applauded the Biden Administration’s move. “[DHS] has taken an important step to ensure that immigration enforcement supports, rather than interferes with, the effective enforcement of the laws meant to protect all workers in this country,” said AFL-CIO President Liz Shuler in a public statement.
Workers in the crosshairs
The Obama Administration also halted workplace raids, but its guidance was less sweeping. It stopped short of implementing protective systems for workers to report abusive employers. Under Obama, audits of worksites also continued, resulting in the deportations of workers.
The Trump Administration, which promised a hardline stance on undocumented immigration, increased the number and scope of workplace raids. In 2019, ICE oversaw the largest raid in history in Mississippi, detaining 680 undocumented workers at six chicken processing plants across the state on a single day. While four executives from those plants were also later indicted on a variety of charges, including harboring and wire fraud, business owners have for the most part evaded punishment.
Between April 2018 and March 2019, only 11 people were prosecuted for hiring undocumented workers in seven cases, according to the the Transactional Records Access Clearinghouse, a research organization at Syracuse University.
Workers, on the other hand, have long been the focus of legal actions, including criminal charges and deportation hearings. In 1997, when Hincapié was working as an attorney, one of her first clients was a woman who filed an unpaid wages claim and reported her employer in California—and ended up in jail, detained by immigration officials. “That is not a unique story, unfortunately,” Hincapié says.
Luis Espinoza, the lead organizer at the Mississippi Immigrants Rights Alliance (MIRA), says undocumented workers in Mississippi communities continue to approach the organization with complaints of employer abuse. Most recently, Espinoza says, one man told him he can’t miss any days of work, because if he does his employer will refuse to pay him for more days than the one day he takes off. The man asked Espinoza not to report the employer. He worried his boss would fire him or report him to ICE.
“It’s not easy,” Espinoza tells TIME. “For me, I don’t know what to do…If we follow up with some kind of action, in the end they could lose their job.”
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