S 1195

112th CONGRESS
1st Session

S. 1195

To protect victims of crime or serious labor violations from deportation during Department of Homeland Security enforcement actions, and for other purposes.

IN THE SENATE OF THE UNITED STATES

June 14, 2011

Mr. MENENDEZ introduced the following bill; which was read twice and referred to the Committee on the Judiciary


A BILL

To protect victims of crime or serious labor violations from deportation during Department of Homeland Security enforcement actions, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the `Protect Our Workers from Exploitation and Retaliation Act' or the `POWER Act'.

SEC. 2. VICTIMS OF SERIOUS LABOR AND EMPLOYMENT VIOLATIONS OR CRIME.

    (a) 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--

      (1) in clause (i)--

        (A) by amending subclause (I) to read as follows:

          `(I) the alien--

            `(aa) has suffered substantial abuse or harm as a result of having been a victim of criminal activity described in clause (iii);

            `(bb) has suffered substantial 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;';

        (B) 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;

        (C) in subclause (III)--

          (i) 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, to the National Labor Relations Board'; and

          (ii) 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

        (D) in subclause (IV)--

          (i) by inserting `(aa)' after `(IV)' and

          (ii) by adding at the end the following: `or

          `(bb) a workplace claim described in clause (iv) resulted from a labor or employment violation;';

      (2) in clause (ii)(II), by striking `and' at the end;

      (3) in clause (iii), by striking `or' at the end and inserting `and'; and

      (4) by adding at the end the following:

        `(iv) in the labor or employment violation related to a workplace claim, the alien--

          `(I) 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)(C)(iii)(II)); and

          `(II) reasonably fears, has been threatened with, or has been the victim of, an action involving force, physical restraint, retaliation, or abuse of the immigration or other legal process against the alien or another person by the employer in relation to acts underlying the workplace claim or related to the filing of the workplace claim; or'.

    (b) Temporary Protection for 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 and grant the alien employment authorization if the Secretary determines that the alien--

      (1) 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

      (2)(A) 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)); and

      (B) has been helpful, is being helpful, or is likely to be helpful to--

        (i) a Federal, State, or local law enforcement official;

        (ii) a Federal, State, or local prosecutor;

        (iii) a Federal, State, or local judge;

        (iv) the Department of Homeland Security;

        (v) the Equal Employment Opportunity Commission;

        (vi) the Department of Labor;

        (vii) the National Labor Relations Board; or

        (viii) other Federal, State, or local authorities investigating, prosecuting, or seeking civil remedies related to the workplace claim.

    (c) Conforming Amendments- Section 214(p) of the Immigration and Nationality Act (8 U.S.C. 1184(p)) is amended--

      (1) 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;

      (2) in paragraph (2)(A), by striking `10,000' and inserting `30,000'; and

      (3) in paragraph (6)--

        (A) by inserting `or workplace claims described in section 101(a)(15)(U)(iv)' after `described in section 101(a)(15)(U)(iii)'; and

        (B) by inserting `or workplace claim' after `prosecution of such criminal activity'.

    (d) 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'.

    (e) 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--

      (1) in subparagraph (E), by striking `physical or mental abuse and the criminal activity' and inserting `abuse and the criminal activity or workplace claim';

      (2) in subparagraph (F), by adding `or' at the end; and

      (3) by inserting after subparagraph (F) the following:

        `(G) the alien's employer,'.

SEC. 3. LABOR ENFORCEMENT ACTIONS.

    (a) Removal Proceedings- Section 239(e) of the Immigration and Nationality Act (8 U.S.C. 1229(e)) is amended--

      (1) in paragraph (1)--

        (A) by striking `In cases where' and inserting `If'; and

        (B) 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

      (2) 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.'.

    (b) 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 Department 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 in retaliation against employees for exercising their rights related to a workplace claim, the Department shall ensure that--

          `(i) any aliens arrested or detained who are necessary for the investigation or prosecution of 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 Department--

            `(I) notifies the appropriate law enforcement 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 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 appeals, whichever is later, unless the Department establishes, by a preponderance of the evidence in proceedings before the immigration judge presiding over that alien's removal hearing, that--

            `(I) the alien has been convicted of a felony; or

            `(II) the workplace claim was filed in bad faith with the intent to delay or avoid the alien's removal.

          `(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 appeals, and shall be extended by the Secretary of Homeland Security for a period of not longer than 3 additional years upon determining that--

            `(I) such relief would enable the alien asserting a workplace claim to pursue the claim to resolution;

            `(II) the deterrent goals of any statute underlying a workplace claim would be served; 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 workplace claim or from the presiding officer overseeing the workplace 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 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, or nondiscrimination.'.

SEC. 4. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated such sums as may be necessary to carry out this Act and the amendments made by this Act.

END