How Immigrants Who Suffered Labor Violations Can Stay in the U.S.

Juana Nuñez walked down the hallways offering warm food and aguas frescas — a non-alcoholic drink — to Latino undocumented workers who waited for their names to be called in this makeshift legal clinic at the Mexican Consulate in New Brunswick, N.J. Not long ago, she was one of them.

A year ago, Nuñez discovered that the spice factory where she worked was altering her hours on her paycheck, effectively stealing her wages, and failing to provide employees meal breaks. New Labor, a nonprofit organization, helped her file a labor complaint.

“We went to talk to the supervisor and manager, when the human resources manager said we were illegal and we had no right to ask for these changes,” Nuñez said.

Three months later, she had work authorization and protected status thanks to a program launched by the Biden administration early last year. Deferred Action for Labor Enforcement (DALE) helps undocumented immigrants who have been victims of labor violations like wage theft and discrimination at the workplace to obtain work authorization.

“We will hold these predatory actors accountable by encouraging all workers to assert their rights, report violations they have suffered or observed, and cooperate in labor standards investigations,” said Secretary of Homeland Security Alejandro N. Mayorkas in a press release in January 2023.

The program guarantees a work permit for four years, but it is not a path to citizenship. Since DALE started, about 6,000 immigrant workers have benefited from it, according to DHS. But immigration advocates say the number should be much higher.

“This administration is very afraid of nativist blowback,” attorney Caleb Soto, at the National Day Laborer Organizing Network (NDLON), said. “They’ve sort of treated it more like a pilot program than what it actually is, which is a protection that could help hundreds of thousands of workers, not just a handful of workers.”

DHS officials declined to be interviewed for this article.

Nuñez came to the U.S. illegally from Mexico in 2007 and learned about the program last year, when New Labor Organizer Reynalda Cruz told her she could report her company for the violations she was facing. Now, Nuñez spends her time educating other undocumented Latinos about DALE and plans to support the organization by participating in upcoming marches in Washington.

“I let my coworkers know and recommend that as Hispanics we need to raise our voices and make it viral because this is a reality,” Nuñez said in Spanish. “We have to lose the fear, because fear is what ends us.”

The National Day Laborer Organizing Network has been hosting clinics around the country in order to increase awareness. On Sept. 7, the Mexican Consulate provided support by offering space and paying the $520 worker authorization permit fee for those applying. About 30 workers filled their applications.

“In this clinic we had wage theft, discrimination, labor abuse,” Cruz said in Spanish. “There’s two people here who have been fired just because of [their] age.”

To apply, a worker must fill out a complaint and obtain protection from immigration-related retaliation, which leads to an investigation and letter of interest to DHS asking to provide temporary protection to the worker. This letter of interest can be filled out by government agencies, such as the Occupational Safety and Health Administration and the Department of Labor, and protects the worker from being deported until the labor dispute is closed.

The program was developed following Mayorkas’ Worksite Enforcement Memo, which directed DHS to create policies protecting victims of labor violations. This summer, the National Day Laborer Organizing Network successfully lobbied for extending the work authorization period from two to four years.

Immigration has become a hot-button issue during this presidential election, with former President Donald Trump advocating for mass deportations and the elimination of policies that benefit immigrants. Immigration advocates are concerned that a new Trump administration could target DALE the same way it did with the Deferred Action for Childhood Arrivals (DACA).

DACA, offering some young undocumented immigrants temporary reprieve from deportation, was unveiled by then-President Barack Obama in June 2012, a few months before that year’s presidential election. Immigration advocates want a similar move on DALE from President Joe Biden this year.

“We really just want the president of the U.S. to announce this program,” Cruz said in Spanish. “That he comes out and announces it.”