October 14, 2021

Department of Homeland Security (DHS) Secretary Alejandro Mayorkas issued a memorandum to Immigration and Customs Enforcement (ICE), U.S. Citizenship and Immigration Services (USCIS), and Customs and Border Protection (CBP) instructing the agencies to end the practice of deportation raids on worksites.

In the memo, Mayorkas states that the deployment of mass worksite operations was not focused on “exploitative employers” which he called the most pernicious aspect of the United States’ unauthorized employment challenge. Mayorkas added that the “highly visible operations” misallocated enforcement resources while chilling, and even serving as a tool of retaliation for, worker cooperation in workplace standards investigations. This was a key point former SWACCA President Matt Townsend made in his testimony before the House Education and Labor Subcommittee on Workforce Protections in September, 2019. Townsend noted that misclassification has proliferated, in part, because enforcement investigations often must rely on statements from undocumented workers who are fearful that they may be arrested or deported if they aid in an investigation.

Additionally, Mayorkas states that he understands that the Department of Labor has recently requested support in certain ongoing workplace standards investigations, including by asking DHS to exercise prosecutorial discretion for workers who are victims of, or witnesses to, workplace exploitation. Mayorkas said that these individual requests should be considered on a case-by-case basis, weighing all relevant facts and circumstances. In evaluating these requests, Mayorkas said the legitimate enforcement interests of a federal government agency should be weighed against any derogatory information to determine whether a favorable exercise of discretion is merited.

Mayorkas notes that DHS still has a critical role in ensuring that U.S. workplaces comply with immigration laws. To that end, Mayorkas said DHS will adopt the following practices and policies to achieve that goal: (1) reduce demand for illegal employment by delivering more severe consequences to exploitative employers and their agents; (2) increase the willingness of workers to report violations of law by exploitative employers and cooperate in employment and labor standards investigations; and (3) broaden and deepen mechanisms for coordination between DHS and the Department of Labor, the Department of Justice, the Equal Employment Opportunity Commission, the National Labor Relations Board, and state labor agencies.

You can access the full memorandum on the DHS website here.

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