Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The U.S. Department of Homeland Security (DHS) has announced a centralized process whereby undocumented workers who are victims of, or witnesses to, violations of labor rights (including workers’ rights surrounding wage protection, workplace safety, and other labor and employment laws) can access a streamlined and expedited deferred action request process. Deferred action is a legal concept in which the government, at its discretion, defers taking action against someone who can be legally removed from the United States. For example, prosecutorial discretion may be exercised to defer a noncitizen’s removal and/or to grant a noncitizen’s application for employment authorization. The new mechanism affords a streamlined and faster way in which undocumented workers might be considered for prosecutorial discretion when participating in an investigation of an employer’s workplace violation. It also facilitates the ability of labor and employment agencies to more fully investigate worksite violations and hold employers accountable.
Central to this process is that this request for deferred action 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. Under this process, the U.S. Citizenship and Immigration Services (USCIS) will act as the central intake point of a worker’s deferred action request. If the worker is already in removal proceedings (the legal process to determine if a person can lawfully remain in the United States), the USCIS will forward the worker’s request to U.S. Immigration and Customs Enforcement (ICE).
These efforts stem from an October 12, 2021 DHS worksite enforcement strategy, Worksite Enforcement: The Strategy to Protect the American Labor Market, the Conditions of the American Worksite, and the Dignity of the Individual. This memorandum directs DHS’ three branches—ICE, USCIS, and U.S. Customs and Border Protection (CBP)—to take actions to protect the American labor market by redirecting the focus from undocumented workers to employers they determine may have labor and employment law compliance issues.
Specifically, the memorandum calls for focusing on employers that exploit undocumented workers and conduct illegal activities, including paying substandard wages, imposing unsafe working conditions, and facilitating human trafficking and child exploitation. It also establishes an end to mass worksite enforcement operations, as these are resource-intensive operations that result in the simultaneous arrest of hundreds of workers and were used as a tool by exploitative employers to suppress and retaliate against workers who asserted their employment law rights.
This focus has occurred with past administrations. Notably, the cessation of mass worksite enforcements can be viewed differently from an employer’s I-9 compliance audit because I-9 compliance audits target employers by fining employers for I-9 violations and can be used as a premise to expand an investigation outside the scope of an I-9 audit. Mass worksite enforcements, on the other hand, target undocumented workers.
The memorandum also calls for broader and deeper mechanisms for coordinating with interagency partners—Department of Labor (DOL), Department of Justice (DOJ), the Equal Employment Opportunity Commission (EEOC), the National Labor Relations Board (NLRB), and state labor agencies—to enforce worker protections. These agencies have the authority to submit Statements of Interests in support of the worker’s deferred action request.
DOL is the appropriate reporting agency for an employer’s violation of wage and hour laws. DOJ’s Immigrant and Employee Rights Section is an avenue in which workers might report violations of the Immigration and Nationality Act, such as unfair documentary practices during the employment eligibility verification process, and worker retaliation or intimidation. EEOC has the authority to submit statements regarding discrimination against the worker based on protected characteristics, including immigration status and nationality. NLRB’s jurisdiction allows it to conduct investigations surrounding labor unions, as well as terminations resulting from discussions surrounding employment terms, such as hourly wage.
How does this affect U.S. employers?
DHS’ new policy allows undocumented workers who are victims of or witnesses to workplace violations an easier, more accessible way of requesting protection from a forced removal. What is noteworthy is that this process is carried out in direct partnership with the DOL, DOJ, EEOC, NLRB, and state labor agencies. This new process will affect U.S. employers, as it will likely encourage more workers to report violations of or serve as witnesses regarding their employers’ labor or employment law violations due to a lessened fear of immigration-based retaliation.