DHS announces process enhancements for supporting labour enforcement investigations

The U.S. Department of Homeland Security (DHS) has announced that non-citizen workers who are victims of, or witnesses to, the violation of labour rights, can access a streamlined and expedited deferred action request process.

Improving workplace conditions

Deferred action protects non-citizen workers from threats of immigration-related retaliation from exploitive employers. Effective immediately, this process will improve DHS’s longstanding practice of using its discretionary authority to consider labour and employment agency-related requests for deferred action on a case-by-case basis.

Workers can visit DHS.gov for additional information in English and Spanish and submit requests. These improvements advance the Biden-Harris Administration’s commitment to empowering workers and improving workplace conditions by enabling all workers, including noncitizens, to assert their legal rights.

Protecting the American labour market

Through these efforts, we will effectively protect the American labour market and the dignity of the workers"

“Unscrupulous employers who prey on the vulnerability of non-citizen workers harm all workers and disadvantage businesses who play by the rules,” said Secretary of Homeland Security - Alejandro N. Mayorkas, adding “We will hold these predatory actors accountable by encouraging all workers to assert their rights, report violations they have suffered or observed, and cooperate in labour standards investigations.

He adds, "Through these efforts, and with our labour agency partners, we will effectively protect the American labour market, the conditions of the American worksite, and the dignity of the workers who power our economy.” 

Reporting violations

Workers are often afraid to report violations of law by exploitative employers or to cooperate in employment and labour standards investigations because they fear removal or other immigration-related retaliation by an abusive employer. Agencies tasked with enforcing labour and employment laws depend on the cooperation of these workers in their investigations.

Refraining from reporting violations due to a fear of immigration-based retaliation creates unfair labour market conditions and perpetuates the commission of unlawful and inhumane acts by employers, including nonpayment of wages, the imposition of unsafe working conditions, and chilling workers’ ability to organize and collectively bargain to improve such conditions.

Discretionary protection

DHS’s practice of offering discretionary protection on a case-by-case basis to non-citizen victims facilitates the ability of labour and employment agencies to investigate worksite violations, supporting the agencies in fulfilling their mission and holding abusive employers accountable.

By streamlining this process and helping to improve workplace conditions for all workers, the announcement is one of many ways in which DHS is taking action to fulfill its commitment to U.S. workers, under the White House Task Force on Worker Organising and Empowerment.

Centralised intake process

The centralised intake process will allow DHS to efficiently review time-sensitive requests, provide additional security

In addition to providing new guidance to labour agencies regarding processes to seek deferred action for certain workers, DHS will also provide for a single intake point for deferred action requests from non-citizen workers that labour enforcement agencies support.

The centralised 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 labour agencies.

These process enhancements are consistent with the Secretary's Mayorkas’October 2021 memorandum, which directed DHS offices and agencies to ensure that DHS fulfills its critical role in supporting the important work of labour agencies to enforce wage protections, workplace safety, labour rights, and other laws and standards.

Request consideration

DHS has long considered requests for deferred action submitted by non-citizen workers who fall within the scope of a labour agency investigation and/or enforcement action.

Noncitizens will be able to submit such requests to U.S. Citizenship and Immigration Services (USCIS) through a central intake point established specifically to support labour agency investigative and enforcement efforts.

Deferred action requests

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.

Efficient processing of deferred action applications for employment authorisation will reduce potential risks

USCIS will consider all other deferred action requests on a case-by-case basis. USCIS will also consider all related employment authorisation applications, including those related to deferred action requests decided by ICE.

Given the often time-sensitive labour agency enforcement interests, efficient processing of deferred action and related applications for employment authorisation will reduce potential risks to workers and retaliation by their employers under investigation.

Case-by-case determinations

In addition to satisfying individual criteria to facilitate case-by-case determinations, requests for deferred action submitted through this centralised process must include a letter (a Statement of Interest) from a federal, state, or local labour agency asking DHS to consider exercising its discretion on behalf of workers employed by companies identified by the agency as having labour disputes related to laws that fall under its jurisdiction.

In addition to other elements, as detailed in DHS’s Frequently Asked Questions (FAQs), the letter from the labour agency should include the following:  

• The enforcement or jurisdictional interest of the labour agency and how it relates to the mission of the labour agency; 
• The workers covered by the Statement of Interest;
• Why DHS’s consideration of prosecutorial discretion concerning these specific workers supports the labour agency’s interest? 

Discretionary grants

Consistent with existing practice, discretionary grants of deferred action under this process will typically last for two years, subject to termination at any time. Individuals granted deferred action may be eligible for employment authorisation 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 labour agency has a continuing investigative or enforcement interest in the matter identified in their original letter supporting DHS's use of prosecutorial discretion.