DHS Announces Process Enhancements for Supporting Labor Enforcement Investigations
The U.S. Department of Homeland Security (DHS) has announced that noncitizen employees can now access a streamlined and accelerated deferred action request process if they are labor rights violators or witnesses to such violations. Deferred action shields noncitizen employees from exploitative employers' threats of immigration-related retaliation. With immediate effect, this procedure will enhance DHS's long-standing practice of using its discretionary power to evaluate requests for deferred action related to labor and employment agencies on an individual basis. Workers can submit requests and request more information on DHS.gov in both English and Spanish. By enabling all employees, including noncitizens, to assert their legal rights, these advancements further the Biden-Harris Administration's commitment to worker empowerment and bettering working conditions.
As stated by Secretary of Homeland Security Alejandro N. Mayorkas, "Unscrupulous employers who prey on the vulnerability of noncitizen workers harm all workers and disadvantage businesses who play by the rules." "By encouraging all workers to assert their rights, report violations they have experienced or observed, and cooperate in labor standards investigations, we will hold these predatory actors accountable. We will successfully defend the American labor market, workplace conditions, and the dignity of the workers who fuel our economy through these efforts and those of our labor agency partners.
Because they worry about being deported or other forms of immigration-related retaliation by an abusive employer, workers are frequently afraid to report legal violations by exploitative employers or to assist in employment and labor standards investigations. The assistance of these employees in investigations is required by the organizations tasked with upholding labor and employment laws. Fear of immigration-based retaliation prevents people from reporting violations, which leads to unfair labor market conditions and encourages employers to continue committing illegal and cruel acts like withholding wages and imposing unsafe working conditions while also inhibiting employees' ability to organize and engage in collective bargaining to change these conditions. DHS's practice of providing noncitizen victims with discretionary protection on a case-by-case basis makes it easier for labor and employment agencies to thoroughly investigate workplace violations, assisting the agencies in carrying out their objectives and holding abusive employers accountable. Today's announcement is just one of many steps DHS is taking to live up to its commitment to American workers, as mandated by the White House Task Force on Worker Organizing and Empowerment, by streamlining this procedure and assisting in the improvement of working conditions for all employees.
DHS will also set up a single intake point for deferred action requests from noncitizen workers that are supported by labor enforcement agencies, in addition to offering new guidance to labor agencies regarding procedures to seek deferred action for some workers. The centralized intake procedure will enable DHS to effectively examine these urgent requests, individually offer more security to qualified workers, and more fully support the objectives of labor agencies. These improvements to the process are in line with Secretary Mayorkas' memo from October 2021, which instructed DHS offices and agencies to make sure that DHS fulfills its crucial role in assisting labor agencies in their important work of enforcing wage protections, workplace safety, labor rights, and other laws and standards.
Deferred action requests made by noncitizen employees who are the subject of a labor agency investigation and/or enforcement action have long been taken into consideration by DHS. Through a central intake point created especially to support labor agency investigative and enforcement efforts, noncitizens will now be able to submit such requests to U.S. Citizenship and Immigration Services (USCIS). After checking the application for completeness, USCIS will send deferred action requests from noncitizens who are subject to removal proceedings or who have a final order of removal to U.S. Immigration and Customs Enforcement (ICE), who will then make a final decision based on each individual case. All other deferred action requests will be evaluated by USCIS on an individual basis. All applications for employment authorization that are connected to deferred action requests that have been approved by ICE will also be taken into account by USCIS. Effective processing of deferred action and related applications for employment authorization will lessen potential risks to workers and retaliation by their employers who are under investigation. This is because labor agency enforcement interests are frequently time-sensitive.
Requests for deferred action submitted through this centralized process must meet specific requirements to facilitate case-by-case determinations and include a letter (a Statement of Interest) from a federal, state, or local labor agency asking DHS to take special measures on behalf of workers employed by businesses the agency has identified as having labor disputes related to laws that fall under its purview. Along with other components listed in DHS's Frequently Asked Questions (FAQs), the letter from the labor agency must contain the following:
The workers covered by the Statement of Interest; The enforcement or jurisdictional interest of the labor agency and how it relates to the agency's mission; The reasons why DHS should exercise prosecutorial discretion with regard to these particular workers;
Discretionary grants of deferred action under this process will typically last for a period of two years, subject to termination at any time, in accordance with standard practice. Deferred action recipients may be eligible for employment authorization under current rules, which demand that they provide proof of an economic need for employment. If a labor agency has a continuing investigative or enforcement interest in the matter mentioned in their initial letter supporting DHS use of prosecutorial discretion, they might also be qualified for subsequent grants of deferred action.