A group of undocumented construction laborers had their legal work authorization approved as a result of their work cooperating with law enforcement. Jan. 18, 2024. Credit: Ben Fractenberg/THE CITY

By Claude Irizarry Aponte | January 30, 2024

Construction worker José Moncada fractured his wrist while using a jackhammer on a demolition job in Manhattan six years ago — and got some unusual instructions from his site foreman, who promised he’d get his medical bills reimbursed.

One, take a cab to the hospital, rather than an ambulance. And two, tell doctors he hurt himself at the park, he recounted.

Working for the same demolition company at another construction site, a welder named Alejo suffered a debilitating injury when sparks hit his eye, close to his retina. (Alejo requested that his last name not be published.) His foreman paid for a cab to the hospital, instructed him not to disclose he was injured on the job, and said the company, Caledonia Carting Services, would pay his medical bills.

Both men relayed their experiences to law enforcement authorities investigating allegations of workers’ compensation fraud and retaliation against workers by Alba Services Inc., which uses laborers supplied by Caledonia Carting. In return, both received working papers after more than a decade in the U.S. as undocumented workers.

The two men’s work authorizations resulted from a little-known new federal program that allows immigrants exploited in the workplace, or who are involved in law enforcement probes stemming from workplace violations, to apply for protections from deportation.

That protection, known as deferred action, also allows them to apply for legal work permits that help pull workers out of the underground economy where exploitation and danger is commonplace and the threat of deportation keeps workers compliant. While deferred action lasts up to two years, it also allows individuals to apply for Social Security numbers – unlocking the ability to apply for home and credit-card loans.

For Alejo, notching his “papers” means he can finally fulfill his dream of buying a home for his wife and four children, who he called “my life, my engine, my everything.” He left his native Mexico as a teenager and has lived in New York for 22 years, more than half his life.

“For me, this is the most unbelievable thing. To finally be on my own two feet, without fear, to finally be able to take this step,” he said.

Under the policy, the Department of Homeland Security can grant discretionary relief from deportation to a wide swath of workers who are victims of or witnesses to labor law violations, from wage theft to discrimination to dangerous jobsite conditions.

Undocumented workers entering the construction industry often end up in non-union work, where they are at heightened risk of exploitation, severe injury or death on the job.

The number of people in New York state who have been granted relief under the policy is not known, but on Jan. 17 the Department of Homeland Security announced that over 1,000 workers nationwide had been granted relief under the policy in the last year; DHS did not respond to THE CITY’s questions.

THE CITY left messages for Caledonia Carting and Alba Services seeking comment.

Results and Risks

In announcing the new process a year ago, the U.S. Department of Homeland Security said it “has long considered requests,” on a case-by-case basis, to protect workers cooperating with law enforcement from deportation.

But now the request process is “streamlined and expedited,” according to the department, and adds work authorizations to the mix.

Undocumented immigrants involved in workplace investigations by federal, state or local agencies may submit, or have an attorney submit on their behalf, a deferred action request to the U.S. Citizenship & Immigration Services, including a statement from an enforcement agency asking DHS to consider granting the request.

The guidelines build on efforts by the federal government to offer undocumented immigrants additional options to obtain legal work status, part of President Joe Biden’s agenda to better support immigrant workers.

Labor agencies and law enforcement in New York and immigrant-friendly states including California and Massachusetts moved quickly to make use of the policy, even as other states have declined to issue statement-of-interest letters.

The new process was widely praised by advocates for immigrant workers and New York leaders who saw it as an opening for workers who may have been hesitant to come forward with their experiences.

But, for eligible workers, the protected legal status is not without risks. The discretionary action lasts for up to two years and, though it can be renewed, the federal government reserves the right to revoke individuals’ status at any time. In 2020, former president Donald Trump tried and failed to get the Supreme Court to overturn a similar Obama-era policy granting the status to migrants who were brought to the country illegally as children, and reportedly intends to try again if elected in November.

Moncada, Alejo and three other former coworkers were able to apply for deferred action with the help of their union, Laborers Local 79, which has been tracking complaints against Alba Services and associated companies for several years.

“We are proud to help people who want to build the future of New York navigate the deferred action process and seek work authorization,” Mika Prohaska, the union’s business manager, said in a statement. “Protecting the rights of undocumented workers helps protect the rights of all workers.”

The New York State Department of Labor has issued 41 statement of interest letters covering 110 workers so far, and the state Attorney General has submitted letters seeking to protect hundreds of other workers, according to the office. Earlier this month, the state Workers’ Compensation Board announced it would join efforts with the federal government to help non-citizen workers gain protection from deportation.

“Fear of retaliation is paralyzing for any worker, but it is especially dreadful for immigrants,” New York State Department of Labor Commissioner Roberta Reardon said in July. “We believe that all workers have rights in every workplace across New York State. If any worker is a victim of or a witness to labor violations, please report it to us. We can help.”

But some advocates for day laborers and undocumented workers say the returns in New York so far, more than a year after the policy was first authorized, are slim. Even while hundreds of workers statewide have received law enforcement support for applications, potentially thousands who may be eligible have not applied, according to advocates.

Groups that pushed for the streamlined application say that government agencies have barely promoted the opportunity, leaving them to take matters into their own hands. On Jan. 26, more than two dozen members of Congress, including several from New York City, asked DHS for additional information on how the agency promotes the program.

Nadia Marin-Molina, co-executive director of the National Day Laborer Organizing Network, has embarked on a nationwide know-your-rights tour centered around the new policy. The campaign, called DALE, for Deferred Action for Labor Enforcement, also distributed a folded booklet in Spanish for workers.

“Obviously it’s the first year, it’s taking time. But, you know, there’s so many workers who should be eligible for this and who should be able to apply, that it’s clear that the numbers are not — it’s just not large enough,” Marin-Molina said.

Moncada, 40, encouraged any undocumented worker who has experienced exploitation to call out bad bosses.

“With or without papers, you have rights. Don’t be afraid and have the courage to bring them to justice,” he said.

This story was published by THE CITY on January 30, 2024.

  bad bosses, immigrant workers