Process Update for Labor Enforcement Investigations
On January 13, 2023, the U.S. Department of Homeland Security (DHS) announced that noncitizen workers who are victims of, or witnesses to, the violation of labor rights, can now access a streamlined and expedite deferred action request process. Deferred action protects noncitizen workers from threats of immigration-related retaliation from the exploitive employers. Effective immediately, this process will improve DHS’s longstanding practice of using its discretionary authority to consider labor and employment agency-related requests for deferred action on a case-by-case basis. This practice will facilitate the ability of labor and employment agencies to more fully investigate worksite violations, supporting the agencies in fulfilling their mission and holding abusive employers accountable. Individuals will be able to visit DHS.gov for additional information and to submit requests.
In addition to providing new guidance to labor agencies regarding processes to seek deferred action for certain workers, DHS will also provide for a single intake point for deferred action requests from noncitizen workers that are supported by labor enforcement agencies. The centralized intake process will allow DHS to efficiently review these time-sensitive requests, provide additional security to eligible workers on a case-by-case basis, and more robustly support the mission of labor agencies.
Moreover, DHS will also provide a central intake point for deferred action requests from noncitizens who fall within the scope of a labor agency investigation and/or enforcement action to submit such requests to U.S. Citizenship and Immigration Services (USCIS). For deferred action requests from noncitizens who are in removal proceedings or have a final order of removal, upon reviewing the submission for completeness, USCIS will forward such requests to U.S. Immigration and Customs Enforcement (ICE) to make a final determination on a case-by-case basis. USCIS will consider all other deferred action requests on a case-by-case basis. USCIS will also consider all related employment authorization applications, including those related to deferred action requests decided by ICE. Given the often time-sensitive labor agency enforcement interests, efficient processing of deferred action and related applications for employment authorization will reduce potential risks to workers and retaliation by their employers under investigation.
In addition to facilitating case-by-case determinations, requests for deferred action submitted through this centralized process must include a letter (a Statement of Interest) from a federal, state, or local labor agency asking DHS to consider exercising its discretion on behalf of workers employed by companies identified by the agency as having labor disputes related to laws that fall under its jurisdiction. In addition to other elements, the letter from the labor agency should include:
- The enforcement or jurisdictional interest of the labor agency and how it relates to the mission of the labor agency;
- The workers covered by the Statement of Interest; and
- Why DHS’s consideration of prosecutorial discretion with respect to these specific workers supports the labor agency’s interest.
Consistent with existing practice, discretionary grants of deferred action under this process will typically last for a period of two years, subject to termination at any time. Individuals granted deferred action may be eligible for employment authorization under existing regulations, which require that they demonstrate an economic necessity for employment. They may also be eligible for subsequent grants of deferred action if a labor agency has a continuing investigative or enforcement interest in the matter identified in their original letter supporting DHS use of prosecutorial discretion.
For more information about this process, please contact our office to set up a consultation with one of our attorneys today!