[co-author: John B. Holmes, III]

The Occupational Safety and Health Administration (OSHA) has announced that as of March 30, 2023, it will be authorized to give legal protection to immigrant workers involved in workplace safety and health inspections by issuing certifications in support of applications for “U” and “T” non-immigrant status visas. U visas allow victims of certain crimes—including human trafficking, forced labor, and obstruction of justice—who possess information about the crime and help law enforcement or other government officials, to remain in the United States on a temporary basis without fear of retaliation based on their immigration status. T visas similarly allow victims of human trafficking who assist law enforcement to remain on a temporary basis.

The Department of Labor's Wage and Hour Division has been authorized to grant U and T visa certifications during its investigations since 2011. Now OSHA will be able to issue the same certifications. OSHA’s new authority is likely to encourage undocumented workers, who may be afraid to report workplace safety and health concerns for fear of being turned into law enforcement and deported, to report those concerns and cooperate with inspectors. OSHA could use this new tool during an investigation into, for example, a workplace fatality if it claims the employer is “obstructing justice” and the agency is considering criminal penalties against the employer.

OSHA’s announcement serves as a reminder to employers that its inspections have potentially serious consequences and should therefore be taken seriously.