Deferred Action Process for Victims of or Witnesses to Labor Rights Violations

• Introduction
• Deferred action policy purpose and overview
• Rules for deferred action requests for victims of and witnesses to labor violations
  • Statement of Interest from labor agency
  • Request for deferred action
• Conclusion

Introduction

On January 13, 2023, the Department of Homeland Security “announced that noncitizen workers who are victims of, or witnesses to, the violation of labor rights, can now access a streamlined and expedited deferred action request process.”

See DHS news release [link].

Deferred action policy purpose and overview

The DHS explains that “[w]orkers are often afraid to report violations of law by exploitative employers or to cooperate in employment and labor standards investigations because they fear removal or other immigration-related retaliation by an abusive employer.” This is a problem in two respects. Firstly, fear of reporting labor violations makes noncitizens more vulnerable to exploitation. Secondly, “[a]gencies tasked with enforcing labor and employment laws depend on the cooperation of these workers in their investigations.”

The DHS has a long-standing policy of considering requests for deferred action from alien workers who fall within the scope of a labor agency investigation or employment action. Under the new policy, aliens who are victims of labor violations or who are reporting labor violations “will now be able to submit [deferred action] requests to U.S. Citizenship and Immigration Services (USCIS) through a central intake point established specifically to support labor agency investigative and enforcement efforts.” Aliens who are in removal proceedings or subject to final orders of removal may also submit deferred action requests under the new policy. When the USCIS receives a request from an alien in removal proceedings or who is subject to a final order of removal, it will forward the request to the U.S. Immigration and Customs Enforcement (ICE) for a final determination (provided that the request was properly completed).

Deferred action is fundamentally the exercise of prosecutorial discretion. Like any exercise of prosecutorial discretion, USCIS will consider deferred action requests on a case-by-case basis. It will forward requests from aliens in removal proceedings or subject to final orders to ICE, which will, in turn, consider the requests on a case-by-case basis. USCIS will consider all employment authorization applications related to such deferred action requests. DHS provides that USCIS and ICE will work to resolve deferred action requests expeditiously in order to “reduce risks to workers and retaliation by their employers under investigation.”

Rules for deferred action requests for victims of and witnesses to labor violations

There are roles for labor agencies and individual aliens in the deferred action process. These roles are detailed in a DHS factsheet [link]. We discuss the rules below.

Statement of Interest from labor agency

A properly filed request for deferred action by the victim of a labor violation or a witness to labor violations must include a letter, here called a Statement of Interest, from a federal, state, or local labor agency. In the letter, the labor agency must ask the DHS to exercise its discretion on behalf of workers employed by companies identified by the agency as having labor disputes related to laws that fall under the agency's jurisdiction.

Labor agencies must include the following in his Statement of Interest:

Details of the nature of their investigation and the need for DHS support;
Description of their enforcement interests that provide the basis for their request;
Description of the worksite and the workers who may be helpful with the agency investigation; and
Information for agency contact who can address follow-up questions from DHS.

Labor agencies may seek deferred action for certain aliens in the Statemet of Interest. Such requests must be made by a senior-level official. “If the request relates to employment authorization, the request should demonstrate that the need for a person to be employment-authorized is mission-critical and goes beyond a general need to retain a particular worker or person.” That is, in order for the labor agency to request employment authorization on behalf of an alien, it must provide an investigative reason for the request.

Request for deferred action

The DHS factsheet explains that workers requested deferred action must submit the following:

A written request signed by the alien stating the basis for the deferred action request;
A letter or statement of interest from a labor or employment agency addressed to DHS supporting the request (see previous subsection);
Evidence that the worker falls within the scope identified by the labor or employment agency letter (e.g., W-2s, pay studs, time cards, or other documentary evidence establishing that the worker was employed aduring the period identified in the Statement of Interest);
Evidence of any additional factors supporting a favorable exercise of discretion;
Proof of worker's identity and nationality;
If applicable, any document used by the worker to lawfully enter the United States and evidence relating to the worker's immigration history or status;
Form G-325A, Biographic Information (for Deferred Action);
Form I-765, Application for Employment Authorization, with the appropriate fee or request for a fee waiver; and
Form I-765WS, Worksheet.

Note that under existing regulations, noncitizens granted deferred action must show “an economic necessity for employment” in order to be granted employment authorization.

Conclusion

The DHS's new policies for considering deferred action requests by aliens who are victims of labor violations or witnesses to such violations is designed both to protect workers and crack down on abusive employers. A noncitizen who believes that he or she is the victim of a crime may consult with an experienced immigration attorney for case-specific guidance. A limited number of cases potentially covered by the deferred action policy may also fall within the ambit of the U visa category (victims of criminal activity) or T visa category (victims of human trafficking) (see our category on victims of violence immigration). While the deferred action policy will be applicable in some cases, it is important to note its limitations. Firstly, it requires a statement or letter from a labor agency. Secondly, while the policy is generous, USCIS or ICE (whichever has jurisdiction) will still consider all requests on a case-by-case basis, weighing both positive and negative factors.