DEFERRED ACTION FOR LABOR VIOLATIONS
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Phoenix Immigration Lawyer Handling Deferred Action for Labor Disputes
The United States Department of Homeland Security (DHS) has announced a policy that protects noncitizen workers that have witnessed or are victims of violations within their workplace and labor rights. Noncitizen workers can now request deferred action, a form of protection from deportation. DHS will use its discretion to decide whether to grant deferred action to people who are applying for it based on their work or employment history.
Noncitizen workers may be afraid to report labor law violations by their exploitative employers for many reasons. For example, if an employer is abusive, workers might fear being removed from the country or facing other immigration-related retaliation. This can create unfair labor market conditions and make it harder for agencies charged with enforcing labor and employment laws to get information about illegal and abusive behavior.
If you are a noncitizen worker who witnessed or was the victim of a labor law violation, you have protections against immigration-related retaliation by your employer. To learn more about your rights and options, please call the Phoenix immigration attorneys at Ybarra Maldonado Law Group at 602-910-4040 today.
What Is a Labor Law Violation?
Labor violations occur when an employer fails to comply with wage and labor laws. Whether intentional or unintentional, labor law violations infringe on workers’ rights and breach federal laws. Unfortunately, labor violations also affect noncitizen workers and their right to remain in the United States.
Immigrant workers often fear voicing their concerns about their employers’ actions because of the threat of retaliation. If a victim of or witness to a labor violation were to report their employer, their employer may threaten deportation. This is a workers’ rights violation. The Department of Homeland Security has implemented a streamlined process that will allow noncitizen workers to voice their concerns while receiving protections against deportation.
Common Labor Violations
There are many ways in which employers try to take advantage of their employees. This is especially true for noncitizen and undocumented workers, as employers may use the threat of removal proceedings against them. Not only is this a form of labor law violation, but it is also an exploitative removal practice.
Some examples of the most common labor violations include the following.
- Failing to pay minimum wage
- Misclassifying employees
- Illegal deductions from wages
- Imposing unsafe working conditions
- Failing to keep accurate records
- Not maintaining workers’ compensation insurance
- Failing to pay overtime wages
What Methods of Employment Authorization Can Protect Workers from Removal?
According to the DHS’s policy update, multiple avenues exist for helping noncitizen workers obtain employment authorization and avoid removal. Additionally, labor and employment agencies can request expedited processing for a worker’s pending immigration petition, request, or application.
Specific ways in which workers can obtain employment authorization and protection from removal include deferred action, parole in place, T nonimmigrant status, and U nonimmigrant status.
Deferred Action
According to the USCIS, “deferred action is a form of prosecutorial discretion to defer removal action against a noncitizen for a certain period.” Deferred action does not give someone lawful permanent resident status, nor does it forgive past or future instances of unlawful presence. When a noncitizen is granted deferred action, they are considered lawfully present in the United States as long as it is in effect. Through deferred action, noncitizens may be eligible for employment authorization.
Parole in Place
Similarly to deferred action, parole in place allows noncitizens who entered the United States without authorization to stay in the country for a certain period of time. The program is reserved for undocumented family members of United States military personnel.
T Nonimmigrant Status
This is a temporary benefit that allows victims of human trafficking to stay in the United States for an initial period of up to 4 years. To obtain T nonimmigrant status, the individual must comply with reasonable requests for assistance from law enforcement agencies in human trafficking investigations. T nonimmigrant status is also available for certain qualifying family members of trafficking victims.
Those with T nonimmigrant status are eligible for employment authorization and may be eligible for adjustment of status to obtain a green card.
U Nonimmigrant Status
The U visa is available for victims of certain types of crimes who have endured physical or mental abuse. These individuals must also reasonably assist law enforcement in the investigation or prosecution of certain criminal activities. U visa holders are eligible for employment authorization and may be eligible for adjustment of status.
What Does the Labor Agency Do in the Deferred Action Process?
Agencies that enforce labor laws, such as state or local labor agencies, must send a letter (statement of interest) to the DHS. This statement should state that the agency is currently investigating a worksite. They must name the worksite and inform the DHS of workers’ needs for protection from deportation to assist with the investigation. They must also identify which specific workers need this protection.
Before a labor agency sends a statement of interest, a worker must request one from that agency. They must request the letter based on certain circumstances, such as fearing retaliation from their employer.
Statement of Interest Forms for Labor Agencies
When a labor agency receives a request from a worker, they must investigate the situation at their worksite. Then, they must submit a statement of interest to the DHS that seeks support in their ongoing investigation or enforcement of labor laws.
What Should the Statement of Interest Include?
The request for deferred action must include a letter from a federal, state, or local labor agency asking DHS to consider granting a stay of deportation for people who work for companies that the agency has identified as having labor disputes related to laws that fall under its jurisdiction.
To request deferred action, the following must be provided:
- The nature of their investigation and need of DHS support
- Description of agency’s enforcement interest
- Description of worksite and witness for investigation
- Point of contact
As we mentioned previously, labor agencies can also request expedited processing of a worker’s request for immigration benefits. If the request is related to employment authorization, the agency must explain to the DHS why that person’s authorization is critical for the investigation.
The DHS states that they aim to review submissions within 3 business days. If the DHS has approved the request, or if they need more information, they will notify the labor agency. USCIS states that labor agencies should not distribute the statement of interest until the DHS has accepted it.
For more information about this process, labor agencies can email laborenforcement@dhs.gov to speak with DHS.
Who Can Request Deferred Action?
To be eligible for deferred action, the worker must be involved in an open investigation at a labor agency. Additionally, that labor agency must submit a statement of interest to the DHS in support of deferred action for that worker. There are no specific eligibility requirements other than the requirement that the worker falls within the group of workers described in the labor agency’s statement.
Furthermore, any noncitizen worker who meets the above criteria can apply, regardless of whether they are currently in removal proceedings, have a removal order against them, or have never had contact with immigration courts or ICE.
Remember that deferred action is a discretionary protection for workers. This means that every application is decided on a case-by-case basis. In other words, DHS has the final say on whether to grant deferred action, and they can deny it for virtually any reason. This is why we strongly recommend working with a Phoenix immigration lawyer before initiating this process.
Process for Requesting Deferred Action as a Worker
To request deferred action through the new centralized intake process, you must first submit the required information to a labor agency.
- A written request signed by the worker stating a deferred action request and the basis for it
- Letter or statement of interest from the labor agency that is addressed to DHS and supports deferred action for the employee requesting it
- Evidence of employment during the period listed in the statement of interest, such as the following:
- W-2s
- Pay stubs
- Time cards
- Or any other evidence to support the worker’s employment
- Proof of noncitizen’s identity and nationality
- If applicable, any documents of lawful entry to the United States or related to immigration history or status
- Form G-325A
- Form I-765, Application for Employment Authorization
- Form I-765 Worksheet
This means that workers, including noncitizens, will be able to get the benefits they are legally entitled to, and the Biden-Harris Administration will continue to work to improve conditions in the workplace. An immigration attorney can help you gather and fill out the above information and forms.
Where to Submit Documents for Deferred Action Requests
USCIS
Attn: Deferred Action
10 Application Way
Montclair, CA 91763-1350
Can a Worker Obtain Employment Authorization If Granted Deferred Action?
Possibly. Those granted deferred action may be eligible if they can demonstrate “an economic necessity for employment.” If a worker receives deferred action and wants to obtain employment authorization, they must submit Form I-765, Application for Employment Authorization, and pay the filing fee.
Is Deferred Action Renewable?
It depends. Both deferred action and employment authorization may be renewable depending on how long the labor investigation takes. At this time, USCIS has not specified a renewal process.
When Does Deferred Action End If Granted?
If granted, deferred action can last for up to two years. However, some cases may involve shorter periods of time.
FAQs about Deferred Action
What If My Workplace Is Currently Involved in an Investigation?
If you discover that your workplace is already involved in a labor investigation, but no labor agency has requested deferred action, our legal team can help. We have extensive experience handling cases involving deferred action, especially when it comes to ensuring the paperwork is filled out and filed correctly. By working with an attorney from the start, you can save yourself time and avoid rejection by the DHS.
Is Deferred Action a Path to Permanent Resident Status?
No. Deferred action is a temporary protection from deportation. However, after receiving deferred action, you may be eligible to adjust your status.
Contact a Phoenix Immigration Attorney with Ybarra Maldonado Law Group Today
If you are a noncitizen worker who has witnessed or been the victim of a labor violation in your workplace, you may be eligible for deferred action. The best first step you can take is to reach out to an experienced immigration lawyer. At Ybarra Maldonado Law Group, we have years of dedicated experience helping immigrants and their families with their cases. For more information about how deferred action could impact your case, please call our office at 602-910-4040 today.
If you are seeking information about H1B visas, contact an H1B visa attorney about your case. We can also provide information on an H1B extension, H1B transfer, or H1B sponsorship.
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