Fear of Deportation Keeps Some Workers From Reporting Labor Abuses. A New Biden Program Aims to Change That

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With investigations underway into possible labor violations at the two Half Moon Bay mushroom farms where a mass shooting occurred last month, Bay Area immigration and employment lawyers say they’re trying to get the word out about new federal protections — recently announced by the Biden administration — that could shield undocumented workers from deportation if they speak up about workplace abuses.

When Gov. Gavin Newsom visited Half Moon Bay after the Jan. 23 rampage, which took the lives of seven immigrant farmworkers, he expressed shock that employees were living in shipping containers and said some had told him they were earning just $9 an hour.

“You want to verify the California minimum wage? It’s not $9 an hour,” Newsom said. “No health care, no support, no services. But taking care of our health. Providing a service to each and every one of us, every single day.”

State officials immediately began gathering information on California Terra Garden and Concord Farms, the two worksites attacked, and gained entry two hours after law enforcement reopened the sites on Jan. 25, according to Peter Melton, spokesperson for the state Department of Industrial Relations. He confirmed that his agency is investigating both companies for potential workplace violations.

Melton emphasized that the agency does not request or track the immigration status of workers, adding: “In California, workers in agriculture and most other industries are protected by California’s labor laws and workplace safety and health regulations, regardless of their immigration status.”

As a matter of policy, the U.S. Department of Labor would not confirm whether it is also investigating the farms. But Half Moon Bay Vice Mayor Joaquín Jiménez Ureña said federal investigators were in town last week.

“I had the opportunity to meet with them,” he said. “They shared with me what they’re investigating. They want to collaborate with us to make sure the farmworkers are well taken care of with wages and housing, and that any incidents happening on the farms are reported to them.”

Vulnerable to exploitation

Despite California’s labor protections, immigrant workers are often afraid to speak out, fearing retaliation by employers and the threat of deportation, advocates say.

Nearly 60% of the state’s agricultural workers are undocumented immigrants, according to the latest data from the U.S. Department of Labor.

Even farmworkers who are working legally, on temporary H-2A agricultural visas, can be hesitant to make waves because they are dependent on their employers to maintain their work visas. And for undocumented immigrants, the fear is even more acute, says Patricia Ortiz, immigration program legal director with the nonprofit California Rural Legal Assistance.

“Farmworkers specifically are just in a very vulnerable situation,” said Ortiz. “They're in rural areas, where maybe they're isolated from information that people in other parts of the state have access to, in terms of their rights and what recourse they have to enforce those rights.”

But a new, streamlined “deferred action” program, meant to help the government crack down on abusive employers, could encourage more undocumented workers to come forward about unfair or unsafe conditions, Ortiz said.

Workers who show they are cooperating with a labor investigation can apply for a work permit and two years of protection from deportation through an expedited process announced last month by Homeland Security Secretary Alejandro Mayorkas. The protection, to be granted on a case-by-case basis, expands on an October policy memo outlining DHS’s worksite enforcement strategy (PDF).

“Unscrupulous employers who prey on the vulnerability of noncitizen workers harm all workers and disadvantage businesses who play by the rules,” said Mayorkas, in announcing the new program last month. “We will hold these predatory actors accountable by encouraging all workers to assert their rights.”

Spreading the word

Ortiz says immigrant advocacy groups like hers have been hastily arranging trainings and webinars to inform other legal service providers who work with immigrants about the program.

But Jiménez Ureña, Half Moon Bay’s vice mayor, who also leads a farmworker labor project at a local nonprofit known as ALAS or Ayudando Latinos a Soñar, said he was unaware of the federal initiative.

In the wake of the mass shooting — and possible labor violations — at the mushroom farms, the Newsom administration’s Labor and Workforce Development Agency has begun sharing information about the new program.

“The Administration has been in close contact with San Mateo County and community organizations regarding immigration assistance and the new DHS guidance on potential immigration relief for workers who have suffered workplace violations,” Erin Hickey, spokesperson for the agency, said in an email.

California labor leaders plan to hold a training on the new program this week in Los Angeles. And a group of Bay Area attorneys have scheduled a video call to discuss how the protections might benefit their clients.

'A complete 180'

Sergio Benavides, a Hayward immigration lawyer who plans to join that call, said the Biden administration’s approach to labor protections for immigrants is long overdue.

“To me it represents a complete 180 from the Trump era,” he said. “The Biden administration is saying, ‘Hey, workers, we want to help you. We want to protect you. We want to investigate violations of the law. Please come out of the woodwork.’”

But Benavides cautioned that deferred action is only temporary, and said immigrants should first consult a lawyer to decide whether it would benefit them to apply.

There are other forms of immigration relief that could be more durable for undocumented immigrants, including those at the Half Moon Bay mushroom farms, he said. One of those, a U visa, can lead to a green card and eventually citizenship for victims of certain crimes who cooperate with law enforcement or government investigators.

And how useful the new federal program proves to be will depend on how well it's administered, Benavides said. Though DHS says the application process will be “streamlined and expedited,” other immigration applications are often delayed, he noted.

“People may qualify for benefits and they apply for them, but it takes years and there are these huge backlogs,” he said. “They're going to try to fast-track it. But what does that mean? I don't know that the Biden administration has the manpower to make sure that these applications are processed faster.”

How it works

If you’re thinking of applying for deferred action on deportation, here are some details to know:

• An immigration lawyer can help you decide whether it would benefit you to apply. They can also tell you whether there are other forms of immigration relief you may qualify for, including more permanent protections.
• To apply, you need to submit, among other forms:
  • A signed request explaining your claim and that you are participating in a labor agency investigation.
  • A letter of support from the labor agency.
  • Documents to prove your employment.
  • Proof of your identity and nationality.
  • Biographical information.
  • An application for a work permit.
• The protection from deportation is temporary: up to two years. It may be renewed if the labor investigation is ongoing. Please note that DHS says it can terminate deferred action “at any time, at its discretion.”
• If your request is approved — and you can prove “economic necessity” — you can also get a work permit.
• In some cases, USCIS may forward applications to U.S. Immigration and Customs Enforcement, especially if you are in deportation proceedings. They may ask ICE to help decide whether to grant you deferred action.
• U.S. Citizenship and Information Services has set up an office to handle requests on an expedited basis.

Full information about the application process is available here, in Spanish and English.