Deferred Action for Noncitizens Participating in Labor Agency Investigations

The U.S. Department of Homeland Security (“DHS) has announced a streamlined and expedited deferred action request process for workers who have endured labor rights violations. Noncitizens who have not been paid all the wages due to them, have been forced to work in unsafe working conditions, or have been the victim of other labor code violations may be eligible for this program.

Deferred Action is a discretionary tool used by the U.S. Department of Homeland Security (DHS) to delay the deportation of certain non-citizens who are facing removal from the United States. Deferred Action is not a path to citizenship or permanent residence, but rather a temporary reprieve from removal that allows an individual to remain in the United States without fear of deportation.

Deferred Action is often granted to individuals who have pending wage violation cases with the U.S. Department of Labor (DOL). Now, state agencies like the California Division of Labor Standards Enforcement (DLSE) can also request deferred action for noncitizens who are assisting in the investigation of labor disputes.

DLSE is a division of the California Department of Industrial Relations. DLSE is responsible for enforcing California labor laws and regulations, including wage and hour laws and workplace safety and health laws.

A wage violation occurs when an employer fails to pay an employee the wages that they are owed under the law. This can include failing to pay minimum wage, overtime pay, or failing to pay for all hours worked. 

Other violations the state labor agency could investigate include, but are not limited to, failure to provide rest and meal breaks, requiring employees to pay for things that the employer should provide the employee, and requiring employees to work 7 days in a row without proper rest or pay.

If a non-citizen files a complaint with the DOL or DLSE alleging a wage violation, and the agency determines that there is merit to the complaint, the non-citizen may be entitled to back pay for the wages they are owed. 

However, many undocumented workers are afraid to report labor code violations because they fear the risk of deportation. To address this concern, the DHS has implemented a centralized, streamlined program for non-citizens and state agencies tasked with enforcing labor laws to request deferred action of individuals who worked for an employer that is being investigated for labor code violations. The program creates two strong incentives for undocumented workers to accuse their employers of violations: (1) deferred action, and (2) the ability to obtain employment authorization.

However, whether DHS or Congress can grant employment authorization to noncitizens is unclear after an October 2022 ruling by the U.S. Court of Appeals for the Fifth Circuit.

Now, noncitizens or their representatives can submit requests for deferred action to US Citizenship and Immigration Services (USCIS) through a central intake point just for labor agency investigations and enforcement.

If a non-citizen is in removal proceedings or has a final order of removal, USCIS reviews the request to make sure it is complete and then forwards the request to U.S. Immigration and Customs Enforcement (ICE) to make a final determination on a case-by-case basis. If a non-citizen is not in the process of removal, USCIS will review the request on a case-by-case basis.

Requests for deferred action submitted through this centralized process must include a letter called a Statement of Interest from a federal, state, or local labor agency. The state agency must request DHS to exercise its discretionary authority for deferred action and show that the non-citizen is part of an investigation against an employer whose labor violations fall within the jurisdiction of the state agency. 

If the non-citizen meets certain eligibility requirements and is granted Deferred Action, they will be allowed to remain in the United States while their wage violation case is pending without fear of deportation.

If the non-citizen meets these eligibility requirements and is granted Deferred Action, they will be able to obtain a work permit and be protected from deportation for a period of two years. This period can be renewed if the non-citizen remains eligible and continues to meet the Deferred Action requirements.

In summary, Deferred Action is a discretionary tool used by the DHS to delay the deportation of certain non-citizens who have pending wage violation cases with the DOL or in California, the DLSE. If a non-citizen is granted Deferred Action, they will be able to remain in the United States and obtain a work permit while their wage violation case is pending. However, Deferred Action is not a path to citizenship or permanent residence and is subject to change at any time.

Workers Compensation lawyer Roger Haag
About The Author

Roger Haag is an attorney who specializes in consumer, labor, and employment law, primarily representing employees. Mr. Haag has extensive experience in various legal proceedings, including arbitration hearings, administrative hearings, bench and jury trials, and has even presented arguments before the California Courts of Appeal. Additionally, Mr. Haag served in the United States Navy and also has professional experience with the Department of the Navy’s Civilian Acquisition Workforce and Chief of Naval Operations Executive Panel in Washington D.C.

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