Section 1 Short title
This Act may be cited as the “Protect Our Workers from Exploitation and Retaliation Act” or the “POWER Act”.
Protect Our Workers from Exploitation and Retaliation Act
A BILL
To protect victims of crime or serious labor violations from removal during Department of Homeland Security enforcement actions, and for other purposes.
Sec. 2 Victims of serious labor and employment violations or crime
Protection for victims of labor and employment violations— Section 101(a)(15)(U) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(U)) is amended—
in clause (i)—
by striking subclause (I) and inserting the following:
“(I) the alien—
“(aa) has suffered substantial physical, emotional, or mental abuse or harm as a result of having been a victim of criminal activity described in clause (iii);
“(bb) has suffered substantial physical, emotional, or mental abuse or harm related to a violation described in clause (iv);
“(cc) is a victim of criminal activity described in clause (iii) and would suffer extreme hardship upon removal; or
“(dd) has suffered a violation described in clause (iv) and would suffer extreme hardship upon removal;”
in subclause (II), by inserting “, or a labor or employment violation resulting in a workplace claim described in clause (iv)” before the semicolon at the end;
in subclause (III)—
by striking “or State judge, to the Service” and inserting “, State, or local judge, to the Department of Homeland Security, to the Equal Employment Opportunity Commission, to the Department of Labor (including the Occupational Safety and Health Administration), to the National Labor Relations Board, to the head official of a State or local government department of labor, workforce commission, or human relations commission or council”;
by striking “investigating or prosecuting” and inserting “investigating, prosecuting, or seeking civil remedies for”; and
by inserting “, or investigating, prosecuting, or seeking civil remedies for a labor or employment violation related to a workplace claim described in clause (iv)” before the semicolon at the end; and
in subclause (IV)—
by inserting “(aa)” after “(IV)”;
by inserting “or” after the semicolon at the end; and
by adding at the end the following:
“(bb) a workplace claim described in clause (iv) resulting from a labor or employment violation;”
in clause (ii)(II), by striking “and” at the end;
in clause (iii), by striking “or” at the end and inserting “and”; and
by adding at the end the following:
“(iv) in the labor or employment violation related to a workplace claim, the alien has filed, is a material witness in, or is likely to be helpful in the investigation of, a bona fide workplace claim (as defined in section 274A(e)(10)(B)(iii)(II)); or”
Temporary protection for injured workers and victims of crime, labor, and employment violations— Notwithstanding any other provision of law, the Secretary of Homeland Security may permit an alien to temporarily remain in the United States, shall not remove the alien from the United States during the permitted period, and shall provide the alien with the alien employment authorization, if the Secretary determines that the alien—
has filed for relief under section 101(a)(15)(U) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(U)) or section 101(a)(15)(T) of such Act (8 U.S.C. 1101(a)(15)(T));
has filed, or is a material witness to, a bona fide workplace claim (as defined in section 274A(e)(10)(B)(iii)(II) of such Act, as added by section 3(b) of this Act) or has filed, or is a material witness to, a civil claim arising from criminal activity (as defined in section 274A(e)(10)(B)(iii)(III) of such Act); and
has been helpful, is being helpful, or is likely to be helpful to—
a Federal, State, or local law enforcement official;
a Federal, State, or local prosecutor;
a Federal, State, or local judge;
the Department of Homeland Security;
the Equal Employment Opportunity Commission;
the Department of Labor, including the Occupational Safety and Health Administration;
the National Labor Relations Board;
the head official of a State or local government department of labor, workforce commission, or human relations commission or council; or
other Federal, State, or local authorities; or
has filed a workers' compensation claim or is undergoing treatment for a workplace injury or illness.
Requirements applicable to U visas— Section 214(p) of the Immigration and Nationality Act (8 U.S.C. 1184(p)) is amended—
in paragraph (1), by inserting “or investigating, prosecuting, or seeking civil remedies for workplace claims described in section 101(a)(15)(U)(iv)” after “section 101(a)(15)(U)(iii)” each place such term appears;
by striking paragraph (2); and
in paragraph (6)—
by inserting “or workplace claims described in section 101(a)(15)(U)(iv)” after “described in section 101(a)(15)(U)(iii)”; and
by inserting “or workplace claim” after “prosecution of such criminal activity”.
Adjustment of status for victims of crimes— Section 245(m)(1) of the Immigration and Nationality Act (8 U.S.C. 1255(m)(1)) is amended by inserting “or an investigation or prosecution regarding a workplace claim” after “prosecution”.
Adjustment of status and fees— Section 245(l)(7) of the Immigration and Nationality Act (8 U.S.C. 1255(l)(7)) is amended by striking “permit aliens to apply for a waiver of” and inserting “not require the payment of any”.
Change of nonimmigrant classification— Section 384(a)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1367(a)(1)) is amended—
in subparagraph (E), by striking “physical or mental abuse and the criminal activity” and inserting “abuse and the criminal activity or workplace claim”;
in subparagraph (F), by adding “or” at the end; and
by inserting after subparagraph (F) the following:
“(G) the alien’s employer,”
Confidentiality of information— Section 384(b)(2) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1367(b)(2)) is amended by adding at the end the following:
Sec. 3 Labor enforcement actions
Removal proceedings— Section 239(e) of the Immigration and Nationality Act (8 U.S.C. 1229(e)) is amended—
in paragraph (1)—
by striking “In cases where” and inserting “If”; and
by inserting “or as a result of information provided to the Department of Homeland Security in retaliation against individuals for exercising or attempting to exercise their employment rights or other legal rights” after “paragraph (2)”; and
in paragraph (2), by adding at the end the following:
“(C) At a facility about which a workplace claim has been filed or is contemporaneously filed.”
Unlawful employment of aliens— Section 274A(e) of the Immigration and Nationality Act (8 U.S.C. 1324a(e)) is amended by adding at the end the following:
“(10) Conduct in enforcement actions
“(A) Enforcement action—If the Secretary of Homeland Security undertakes an enforcement action at a facility about which a workplace claim has been filed or is contemporaneously filed, or as a result of information provided to the Department of Homeland Security in retaliation against employees for exercising their rights related to a workplace claim, the Secretary shall ensure that—
“(i) any aliens arrested or detained who are victims of or material witnesses to workplace claim violations or criminal activity (as described in subparagraph (T) or (U) of section 101(a)(15)) are not removed from the United States until after the Secretary—
“(I) notifies the appropriate agency with jurisdiction over such violations or criminal activity; and
“(II) provides such agency with the opportunity to interview such aliens; and
“(ii) no aliens entitled to a stay of removal or abeyance of removal proceedings under this section are removed.
“(B) Protections for victims of crime, labor, and employment violations
“(i) Stay of removal or abeyance of removal proceedings—An alien against whom removal proceedings have been initiated under chapter 4 of title II, who has filed a workplace claim, who is a material witness in any pending or anticipated proceeding involving a bona fide workplace claim or civil claim arising from criminal activity, or who has filed for relief under section 101(a)(15)(U), shall be entitled to a stay of removal or an abeyance of removal proceedings and to employment authorization until the resolution of the workplace claim or the denial of relief under section 101(a)(15)(U) after exhaustion of administrative or judicial appeals, whichever is later.
“(ii) Duration—Any stay of removal or abeyance of removal proceedings and employment authorization issued pursuant to clause (i) shall remain valid until the resolution of the workplace claim or the denial of relief under section 101(a)(15)(U) after the exhaustion of administrative or judicial appeals, and shall be extended by the Secretary of Homeland Security for a period of not longer than 10 additional years upon determining that—
“(I) such relief would enable the alien asserting a workplace claim or civil claim arising from criminal activity, or assisting in investigation or prosecution of criminal activity, to pursue the matter to resolution, according to any agency administering any statute underlying these claims or any other credible evidence;
“(II) the deterrent goals of any statute underlying a workplace claim, criminal activity, or civil claim arising from criminal activity would be served, according to any agency administering such a statute or any other credible evidence; or
“(III) such extension would otherwise further the interests of justice.
“(iii) Definitions—In this paragraph:
“(I) Material witness—Notwithstanding any other provision of law, the term material witness means an individual who presents a declaration from an attorney investigating, prosecuting, or defending the claim or from the presiding officer overseeing the claim attesting that, to the best of the declarant’s knowledge and belief, reasonable cause exists to believe that the testimony of the individual will be relevant to the outcome of the workplace claim.
“(II) Workplace claim—The term workplace claim means any written or oral claim, charge, complaint, or grievance filed with, communicated to, or submitted to the employer, a Federal, State, or local agency or court, or an employee representative related to the workplace injury or illness or to the violation of applicable Federal, State, and local labor laws, including laws concerning wages and hours, labor relations, family and medical leave, occupational health and safety, civil rights, or nondiscrimination.
“(III) Civil claim arising from criminal activity—The term “civil claim arising from criminal activity” means any written or oral claim, charge, complaint, or grievance filed with, communicated to, or submitted to a Federal, State, or local agency or court related to the violation of applicable Federal, State, and local laws arising from criminal activity described in section 101(a)(15)(U)(iii).”
Continued application of workforce and labor protection remedies— Section 274A(e) of the Immigration and Nationality Act (8 U.S.C. 1324a(e)), as amended by subsection (b), is further amended by adding at the end the following:
“(11) Rights, remedies, and relief—Notwithstanding an employee’s status as an unauthorized noncitizen during the time of relevant employment or during the back pay period or the failure of the employer or employee to comply with the requirements under this section or with any other provision of Federal law relating to the unlawful employment of noncitizens—
“(A) all rights, remedies, and relief provided under any Federal, State, or local law relating to workplace rights, including reinstatement and back pay, are available to such employee; and
“(B) a court may not prohibit such an employee from pursuing other causes of action giving rise to liability in a civil action.”