DHS Announces Process Enhancements for Supporting Labor Enforcement Investigations
According to a recent announcement from the U.S. Department of Homeland Security (DHS), noncitizen employees who have experienced or seen a violation of their labor rights now have access to a simplified and quick deferred action request procedure. Deferred action shields noncitizen employees against exploitation by exploitative employers who threaten them with immigration-related punishment. This procedure would enhance DHS's long-standing practice of exercising its discretionary power to evaluate petitions for delayed action pertaining to labor and employment agencies on a case-by-case basis. It will take effect right now. Workers may make requests and obtain further information in English and Spanish by going to DHS.gov. By allowing all employees, including noncitizens, to claim their legal rights, these advancements further the Biden-Harris Administration's commitment to worker empowerment and bettering working conditions.
Alejandro N. Mayorkas, secretary of homeland security, warned that dishonest firms that take advantage of the vulnerability of noncitizen employees hurt all workers and damage companies that follow the law. "By empowering all employees to speak up for their rights, report abuses they have experienced or seen, and assist with labor standards investigations, we will hold these predatory individuals responsible. By making these efforts and working with our labor agency allies, we will successfully defend the American labor market, workplace conditions, and the dignity of the people who fuel our economy.
Because they worry about being deported or facing other immigration-related punishment by an abusive employer, workers are often frightened to report legal breaches committed by exploitative employers or to assist in investigations into violations of employment and labor laws. These employees must assist investigators for the organizations entrusted with upholding labor and employment regulations. The failure to report violations because of concerns about immigration-based retaliation leads to unfair labor market conditions, encourages employers to continue engaging in illegal and cruel practices, such as failing to pay workers their wages or imposing unsafe working conditions, and restricts employees' ability to organize and engage in collective bargaining to improve their working conditions. The practice of DHS in providing discretionary protection to noncitizen victims on a case-by-case basis enables labor and employment agencies to conduct thorough investigations into 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 uphold its obligation to American workers in accordance with the recommendations of the White House Task Force on Worker Organizing and Empowerment. Other actions include streamlining this procedure and assisting in the improvement of working conditions for all employees.
DHS will also establish a single intake point for delayed action petitions from noncitizen employees that are supported by labor enforcement agencies, in addition to provide additional advice to labor agencies for procedures to use in seeking deferred action for specific individuals. DHS will be able to examine these urgent requests quickly, provide extra protection to qualified employees as needed, and more fully support the objectives of labor agencies thanks to the consolidated intake procedure. These procedure improvements are in line with the Secretary Mayorkas memorandum from October 2021, which instructed DHS offices and agencies to make sure that DHS fulfills its crucial role as a support for the vital work of labor agencies to enforce wage protections, workplace safety, labor rights, and other laws and standards.
DHS has traditionally taken into account petitions for delayed action made by noncitizen employees who are the subject of an inquiry by a labor agency or an enforcement action. Noncitizens may now make such requests to U.S. Citizenship and Immigration Services (USCIS) via a centralized intake point created especially to help labor agency investigation and enforcement operations. Following a review of the submission for completeness, USCIS will send deferred action requests from noncitizens who are facing 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 delayed action petitions will be taken into account by USCIS on a case-by-case basis. All relevant employment authorization applications, including those pertaining to ICE-approved deferred action requests, will also be taken into account by USCIS. Processing deferred action and associated employment authorization applications quickly will minimize possible risks to employees and retribution by their under-investigation employers given the sometimes time-sensitive enforcement objectives of labor agencies.
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 requesting DHS to take discretionary action on behalf of employees of businesses the agency has identified as having labor disputes related to laws that fall under its purview. The letter from the labor agency should include the following in addition to other details indicated in DHS's Frequently Asked Questions (FAQs):
The employees covered by the Statement of Interest; Why DHS is taking prosecutorial discretion into account with regard to these particular individuals; The enforcement or jurisdictional interest of the labor agency and how it pertains to the labor agency's mandate.
In accordance with standard procedure, discretionary awards of delayed action made via this method will normally be valid for two years but may be revoked at any time. Deferred action recipients may be eligible for work authorization under current rules, which call on them to show that they have a financial need for a job. They could also be qualified for further grants of delayed action if a labor agency shows a persistent interest in looking into or enforcing the issue mentioned in their first letter endorsing DHS's exercise of prosecutorial discretion.