Work Without Fear Legal Briefing:
Advancing Workers’ Rights Through
Executive Action
August 26, 2014
AFL-CIO
Background
• 2009: Immigration for Shared Prosperity: Labor Movement’s
Principles for Immigration Reform
• 2012-June 2013: Senate Bill 744
• April 2013-Present: AFL-CIO calls on White House to take
administrative action to address immigration while Congress
continues to consider legislation
Priority: Broad affirmative relief with work
authorization
• 8 million of the 11 million
undocumented individuals in
the U.S. are employed. So,
broad relief will have a strong
positive effect on worker
rights.
Affirmative Relief
• Deferred action: a form of administrative relief that allows
individuals who are low priorities for removal to come
forward and seek temporary protection and work
authorization.
• Deferred action does not provide a path to a green card or to
citizenship.
• Deferred Action for Childhood Arrivals (DACA) offers a
model. DACA allows DREAMers to work without fear by
providing two-years of deferred action, which is renewable.
Broad affirmative relief
• Total undocumented community: 11 million
• Would benefit from Senate Bill 744: 8 million
Worker protections needed in a broad
affirmative relief program:
(1) No employment requirements for eligibility.
(2) Protections against firings, demotions, or other adverse job
actions against newly work-authorized individuals.
(3) Encourage employers to cooperate in providing documents
needed by employees to prove presence.
Priority: Enforcement-related reforms
• Reassert the primary role of the federal government in
determining and implementing immigration enforcement
priorities by ending programs that delegate these
responsibilities to state and local law enforcement, e.g.,
Secure Communities and 287(g) agreements.
• Ensure that enforcement policies respect due process and do
not unfairly criminalize the immigrant community by ending
Operation Streamline and the practice of expedited removals.
Priority: Specific worker-focused reforms
need in addition to broad affirmative relief
(1) Deferred action for individuals engaged in
protected activity.
(2) Revised internal agency guidance on noninterference in labor disputes.
(3) Protect worker rights during I-9 audits.
(4) Take steps to strengthen the U visa program.
Deferred action for individuals engaged in
protected activity:
• Current policy: Immigration and Customs Enforcement (ICE)
will use prosecutorial discretion to grant deferred action to
individuals engaged in protected activities related to civil
rights and union organizing.
• Problem: No standard application process. Deferred action
is only granted after individual has been arrested, chilling
organizing efforts.
• Solution: New process so that individuals engaged in
protected activity can affirmatively apply for deferred action
and work authorization.
Revised internal agency guidance on noninterference in labor disputes:
• Current policy: Legacy INS Operating Instruction 287.3a is
supposed to prevent ICE interference in labor disputes.
• Problem: Policy is badly out of date and many officers in field
not aware that it is still agency policy.
• Solution: Update the policy to take account of ICE’s current
worksite enforcement practices, especially I-9 audits, and
publicize existence of new policy.
Protect worker rights during I-9 audits:
• Current policy: ICE does not generally share information
about I-9 audits with unions that represent workers at the
audited employer.
• Problem: Unions have a duty to represent their members
and employers are required by the National Labor Relations
Act to bargain with the union over the conduct of any reverification process that flows from an ICE audit.
• Solution: ICE should create a protocol for timely sharing
information about I-9 audits with unions and other worker
representatives.
Take steps to strengthen the U visa program:
• Current policy: U visa regulations permit federal and state
agencies to certify U visa applications where a worker is a
victim of a qualifying workplace crime.
• Problem: US Customs and Immigration Services, which issues
the U visa, has rejected or delayed some applications
certified by these agencies because it appears to be applying
a higher standard for “substantial physical or mental abuse”
in workplace crime cases than in other cases.
• Solution: Department of Homeland Security should direct
USCIS on the correct application of this standard in cases
involving workplace crimes.
Priority: Enable access to citizenship:
• Current policy: More than 9 million Legal Permanent Residents
(LPRs) are currently eligible to apply for citizenship and
approximately 1 million more become eligible each year. In 2013,
only 500,000 naturalized.
• Problem: In recent years, the fee to apply for citizenship has
jumped to $680. Many eligible LPRs do not apply for citizenship
because of high fees and lack of information about the process
and benefits.
• Solution: Lower application fees to encourage eligible LPRs to
apply for citizenship and active promotion of naturalization so
that more community members will have a voice.
For additional questions, contact:
• Shannon Lederer, Director of Immigration Policy, AFL-CIO
• slederer@aflcio.org, (202) 637-5308
• Matt Ginsburg, Associate General Counsel, AFL-CIO
• mginsburg@aflcio.org, (202) 637-5397