On January 13, 2023, the US Department of Homeland Security (DHS) released guidance on Prosecutorial Discretion that outlines a new, streamlined process for immigrant workers to obtain temporary protection from deportation and work authorization if they are involved in a labor dispute. Specifically, this guidance clarifies that immigrant workers may receive deferred action or parole in place if they have an actual or perceived fear that the employer will retaliate against them for exercising their labor rights due to their immigration status, and the employer is under investigation by a federal or state labor agency and the labor agency supports their request.
The goal of the PD process is to facilitate labor law investigations by protecting immigrant workers from retaliation and immigration enforcement while labor agencies investigate or prosecute a labor dispute. This new guidance is rooted in longstanding inter-agency cooperation between labor agencies and DHS and draws on existing DHS authority to exercise prosecutorial discretion. The PD process permits the New York State Department of Labor (NYSDOL) to evaluate requests for a “statement of interest” (SOI) supporting a worker’s request for prosecutorial discretion from DHS. Once the request is approved by DHS, all workers at the worksite impacted by the investigation can apply for deferred action. Each application will be evaluated by US Department of Homeland Security on its individual merits.
NYSDOL is committed to protecting and promoting the safety and health, wages, and working conditions of all workers in New York State regardless of immigration status. We have a strong interest in addressing minimum wage, overtime, recordkeeping, child labor, and workplace anti-retaliation issues. We do this by providing education, consultation services, and enforcement action in a fair, timely and consistent manner. In order for NYSDOL to effectuate laws under its jurisdiction, regardless of immigration status, individuals must feel free to participate in NYSDOL investigations and proceed without fear of retaliation or immigration related consequences.
NYSDOL is committed to protecting all workers in New York, including low-wage noncitizen workers who are among the most at risk for violations of basic civil right and labor standards. In meeting that commitment, NYSDOL must guard against the use of immigration status as a tool of retaliation against workers asserting their legal rights in the state of New York. Low-wage and noncitizen workers are primarily vulnerable to workplace exploitation because they are often hesitant to speak out about violations of the law in fear of their employer’s taking reprisal actions against them.
NYSDOL’s mission and effective enforcement depends on the cooperation of workers from the start of our investigation and into the collection of wages. However, workers who are vulnerable because they lack work authorization or immigration status are often reluctant to report violations, engage with government enforcement agencies as witnesses or victims, exercise their rights, and move forward with the collection of their owed wages. Investigations heavily rely on the testimony of victim-witnesses. Yet, because the noncitizens workers are vulnerable to face abuse in the workplace because of their immigration status, many workers feel intimidated and fear coming forward to participate in investigations. Considering those concerns, the exercise of prosecutorial discretion increases the workers willingness to report unlawful practices as well as fully cooperate in investigations and administrative prosecutions. Prosecutorial discretion mitigates the fear that victims and witnesses may have regarding their cooperation with the investigation and prosecution.
Workers with an actual or perceived fear of violations may hesitate in cooperating with an investigation that will result in the disclosure of their immigration status or that of their family members, or that it will result in immigration-based retaliation from their employers and adverse immigration consequences for themselves or their family. As a result, both workers and NYSDOL face barriers to equitable and effective enforcement of workplace rights and protections, and the many New York employers that adhere to labor and employment laws face unfair competition. Meanwhile, this dynamic reinforces the cost benefits of exploiting an undocumented workforce by unscrupulous employers.
Employers evading workplace laws regularly weaponize immigration status to silence and intimidate their employees by retaliating against them through the possibility of immigration or other law enforcement actions. In many workplaces, fear of retaliation and immigration enforcement commonly impede NYSDOL’s ability to adequately detect and prosecute labor law violations committed by employers.
The process to request a SOI involves the following criteria:
- A worker becomes involved in a labor dispute that is reported to a labor agency.
- The worker or their advocate submits a SOI request to NYSDOL by emailing [email protected]. Requests will be reviewed for completeness by NYSDOL’s Worker Protection Unit. NYSDOL’s Worker Protection Unit will evaluate the SOI request and make a determination within 30 days.
Please be advised that we will issue a denial letter on the 31st day if we do not receive the complete requested information for the SOI.
For additional information or to request a copy of an SOI, please call 877-466-9757
|What is deferred action?||
Deferred action is a form of prosecutorial discretion to defer removal action (deportation) against a noncitizen for a certain period of time. Although deferred action does not confer lawful status or excuse any past or future periods of unlawful presence, a noncitizen granted deferred action is considered lawfully present in the United States for certain limited purposes, while the deferred action is in effect. If granted deferred action, a noncitizen may be eligible for employment authorization. DHS can terminate deferred action at any time, at its discretion.
|Has DHS already granted deferred action to noncitizens who are participating in labor agency investigations?||
Yes. DHS grants deferred action to noncitizen workers on a case-by-case basis at its discretion.
|How does the centralized deferred action process work?||
A noncitizen requesting labor agency investigation-based deferred action submits a written request for deferred action by submitting:
The noncitizen will submit this request to a central intake point at USCIS specifically established to support labor agency investigative and enforcement efforts. USCIS will refer to U.S. Immigration and Customs Enforcement (ICE) any deferred action requests that fall within ICE’s authority, including requests submitted by noncitizens who are in removal proceedings or have a final order of removal.
As with any request for deferred action, DHS will review requests by workers based on a labor agency investigation on a case-by-case basis. DHS will review all positive and negative factors present in the requestor’s case when considering whether to exercise discretion to grant deferred action.
A worker who is participating in or otherwise involved in a labor agency investigation may request deferred action for a period of up to two years.
|Can a noncitizen worker who would otherwise fit within the scope of a labor-related request for prosecutorial discretion described in this FAQ but who does not want to submit a Form I-765, Application for Employment Authorization, request deferred action?||
Yes. A noncitizen worker who falls within the scope of a labor agency investigation but who does not want to submit a Form I-765, Application for Employment Authorization, may request deferred action by submitting their request to the appropriate field office in accordance with the general instructions for requesting deferred action.
|May a noncitizen granted deferred action be eligible for employment authorization?||
Individuals granted deferred action may be eligible for employment authorization under category 8 C.F.R. 274a.12(c)(14), under existing regulations that require them to demonstrate an economic necessity for employment. Noncitizens submitting a deferred action request through this centralized process must concurrently submit their Form I-765, Application for Employment Authorization, with the appropriate fee. If DHS grants deferred action, they will adjudicate the Form I-765. Note that if DHS does not grant deferred action, they will not refund or return the Form I-765 fee. If the requestor does not want to file Form I-765, they can send their request using the standard procedure (sending it to the USCIS field office).
|What agency will be reviewing requests for deferred action from noncitizen workers?||
Requests for deferred action made by noncitizen workers who are participating in or otherwise necessary to a labor agency investigation may be submitted to USCIS through the central intake point specifically established to support labor agency investigative efforts for deferred action requests. USCIS will review the request, as well as the worker’s immigration history, to determine which office within DHS has authority over the request. Upon reviewing the submission for completeness, USCIS will only forward to U.S. Immigration and Customs Enforcement (ICE) requests for deferred action that are submitted by noncitizens who are in removal proceedings or have a final order of removal. USCIS and ICE, as appropriate, will consider and make a case-by-case determination of the deferred action request and USCIS will consider all related Forms I-765, if submitted.
If deferred action is granted through this process, when does it end?
If deferred action is approved, it may be granted for a period of up to two years, subject to termination at any time. The recipient may also be eligible to make subsequent requests for deferred action, which will be adjudicated on a case-by-case basis when a labor agency provides a basis for such a request as it relates to the labor agency’s ongoing investigative or enforcement interests.
|What other immigration benefits can a noncitizen worker pursue if they are not granted deferred action?||
A noncitizen worker who is the victim of a crime or subject to exploitation by an unscrupulous employer and cooperating in a labor agency investigation may be eligible for other forms of immigration relief beyond deferred action, including eligibility for a T or U nonimmigrant visa or parole in place.
Please note that NYSDOL is not directly involved with the DHS process. This is a separate and concurrent process.
To request labor agency-investigation-based deferred action under this centralized intake process, requestors must submit the following:
- A written request signed by the noncitizen 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;
- Evidence to establish that the worker falls within the scope identified in the labor or employment agency letter, such as W-2s, pay stubs, time cards, or other documentary evidence to demonstrate that the worker was employed during the period identified in the labor or employment agency statement
- Evidence of any additional factors supporting a favorable exercise of discretion;
- Proof of the noncitizen’s identity and nationality;
- If applicable, any document used to lawfully enter the United States or other evidence relating to the noncitizen’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
Submit these materials to:
Attn: Deferred Action
10 Application Way
Montclair, CA 91763-1350
As with any request for deferred action, DHS will review requests based on a labor agency investigation on a case-by-case basis. DHS will review all positive and negative factors when considering whether to exercise discretion to grant deferred action. USCIS will forward to U.S. Immigration and Customs Enforcement (ICE) any requests for deferred action from noncitizens who are in removal proceedings or have a final order of removal, so ICE can consider the request for deferred action.
If you have additional questions, please visit the DHS website https://www.dhs.gov/news/2023/01/13/dhs-announces-process-enhancements-supporting-labor-enforcement-investigations