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The Department of Labor Is Making It Harder for Trafficking Victims to Get Protection

Advocates fear that a new policy on visa certifications will further discourage survivors from reporting crimes.
Advocates say recent shifts within the Department of Labor will add extra layers to the visa application process.

Advocates say recent shifts within the Department of Labor will add extra layers to the visa application process.

Last month, when announcing the most recent Department of State annual report on human trafficking around the globe, Secretary of State Mike Pompeo made a statement urging other countries to take a stand against labor and sex trafficking: "We must send the strongest message possible to traffickers that we will not tolerate their despicable and criminal acts."

Among the report's main recommendations for the United States is to increase the investigation and prosecution of labor trafficking cases and reduce obstacles for victims to access trafficking and workplace exploitation-related immigration benefits, like the U and T visas. Created by Congress in 2000 under the Victims of Trafficking and Violence Protection Act, these protections were intended to encourage victims to come forward and help law enforcement in investigations by granting them temporary legal status.

But recent shifts within the Department of Labor (DOL), advocates say, will likely have the opposite effect, adding extra layers to the visa application process and, ultimately, discouraging victims from reporting crimes.

As first reported by Bloomberg Law, right after being sworn in as administrator of the department's Wage and Hour Division, Cheryl Stanton temporarily halted the agency's ability to certify the visas. Since 2015, the DOL has acted as one of the agencies authorized to sign certifications attesting to a victim's credible allegations and cooperation with law enforcement—often the first step in the visa application. (Although certification is not a requirement for the T visa, it can strengthen a case before U.S. Citizenship and Immigration Services makes a decision to grant or deny a petition.)

Now, a new policy says that requests for certifications should be referred to a separate criminal law enforcement agency before the DOL can act on them. And if that agency determines that the crime didn't occur, the DOL will deny the certification.

"The memo seems to say that the DOL should no longer be taking the lead in supporting any survivors of trafficking, that they should pass that on to law enforcement and let them decide," says Jean Bruggeman, executive director of Freedom Network USA, the largest coalition of organizations and advocates working with human trafficking survivors in the U.S. "The problem is that, especially in rural areas, labor inspectors have expertise and oversight over workplace conditions in a way that law enforcement doesn't."

Advocates see the DOL memo as yet another change in practices under the current administration that makes obtaining T visas harder, if not impossible. Starting in November of 2018, USCIS began to place applicants with denied petitions in removal proceedings, raising the risks of applying for the visa in the first place.

"That's an important change," says Stacie Jonas, managing attorney of the human trafficking team at Texas RioGrande Legal Aid. "Because getting a certification is the first step toward applying, anything that slows that on the front end is creating unnecessary delay." According to USCIS, the current processing time for T visa applications is between 16 and 33 and a half months. Jonas says that, when she first started working with survivors around 2008, a decision would usually be made in three to six months.

In addition to the growing backlog and a significant decrease in approval of T visa applications, not being able to get a certification from the DOL might further discourage workers and trafficking victims from reporting crimes committed against them. Even though police departments are also authorized to sign certifications, because such cases more often than not involve some type of coercion related to immigration status by an employer or trafficker, victims tend to be more hesitant to report to the police than to a DOL agent.

"We already have workers who are afraid of law enforcement, and the one agency they might be less afraid is now saying, 'We won't help you,'" Bruggeman says. "We are protecting traffickers instead of survivors and sending a clear message to traffickers that they should continue to exploit victims because no one cares."