In January 2023, the U.S. Department of Homeland Security (DHS) announced a process to allow certain immigrant workers to seek temporary legal status and work authorization in the United States. This temporary status, called “deferred action,” is meant to encourage workers to report employers’ unlawful practices without fear of retaliation, including threats of deportation. Although deferred action is typically available to workers who have filed labor complaints with a federal, state, or local government agency, in some cases filing a complaint may not be required.
If granted, deferred action allows a worker to remain in the United States for two years without fear of deportation and to legally seek employment. In some cases, deferred action may be renewed for additional time.
What exactly is deferred action?
Deferred action is a commitment from DHS to provide its recipient protection from deportation for two years, with a possibility to renew that protection for an additional two years. During this time, a recipient of deferred action is considered to be lawfully present in the United States and is able to apply for work authorization.
Please note that deferred action is only a temporary protection that does not offer any pathways to a permanent legal status in the U.S. Also, applying for deferred action does notify DHS that you are in the United States, with the possibility that DHS could try to deport you after your status expires — even though DHS has stated it has taken steps to prevent this from happening. We strongly recommend talking to an immigration attorney before requesting deferred action, especially if you have a criminal record or outstanding warrants.
How can workers apply for deferred action?
The application for deferred action is typically made with the assistance of an immigration lawyer or a U.S. Department of Justice (DOJ) Accredited Representative. The Immigration Advocates Network has an updated list of free or low-cost immigration service providers that may be able to support workers with their applications. Additionally, in California, a new pilot program is in development that will provide free immigration legal assistance to undocumented agricultural workers involved in investigations by the Division of Labor Standards Enforcement.
DHS has a list of materials and forms that should be included with the deferred action application available on its website. Please note that although the application for deferred action is free, an applicant will also need to submit an application for employment authorization with their application which would require a $410 processing fee which can be waived if eligible for a fee waiver.
Importantly, before applying for deferred action, workers must first request and receive a Statement of Interest (SOI) from the applicable labor agency.
What is a Statement of Interest (SOI) and who can request one?
A Statement of Interest (SOI) is a letter written by a federal, state, or other labor agency in support of worker(s) who are requesting deferred action. The purpose of the SOI is for the agency to inform DHS that granting you deferred action will assist the agency in protecting workers’ rights.
Workers or their advocates need to directly request an SOI from the labor agency with jurisdiction over the specific labor dispute the worker is involved in. Typically, workers get assistance from attorneys, labor organizers, or other advocates in requesting an SOI.
Once the request for an SOI has been submitted to the agency, it will determine if it will draft an SOI and, if it will, submit a draft to DHS for review and approval. If DHS approves the SOI, the agency will provide it to the worker. The worker must then submit the SOI to DHS as part of her application for deferred action.
It is important to note that a request for an SOI is not automatically granted. For example, the agency may deny the request if it determines that the dispute is not within its jurisdiction or scope of interests.
An SOI letter will name the employer and provide a brief description of the labor dispute. Although agencies will likely also name the worksite location and coverage dates for eligible workers, it will not name individual workers.
How does a worker request an SOI?
Most labor agencies have their own process for requesting an SOI. These are described below. In the typical case, a worker will already have filed a complaint with a particular agency, so that agency’s process must be followed. (Some agencies, like the U.S. Equal Employment Opportunity Commission or the California Civil Rights Department, do not require that a complaint already be pending with it.).
Workers who have not already filed a workplace complaint should strongly consider doing so. Below is a partial listing of workplace enforcement agencies that have created a process for requesting SOIs.
How can workers renew their grants of deferred action?
Specifically, workers should provide DHS with an updated Statement of Interest from a labor agency 120 days before the original period of deferred action expires. DHS has explained that labor agencies can revise their original SOI to address the agency’s continued interest and need for the protection of workers or provide an addendum/short cover letter in addition to their original SOI.
Besides the Department of Labor (see below), most labor agencies have not issued updated guidance on how to request updated SOIs at this time. Workers and their representatives should refer to the labor agency’s website or contact the labor agency directly for additional guidance.
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Federal
U.S. Department of Labor (DOL):
The DOL enforces more than 180 federal laws regulating labor, including those that cover wage and hour protections and workplace safety.
Eligibility: Any workers who are experiencing a labor dispute at their worksite are eligible to apply for a “Statement of DOL Interest.” DOL will assess each request based on a variety of different factors, including:
Whether deferred action would support DOL’s interest in holding labor law violators accountable and there is a need for workers/witnesses to participate in DOL’s investigation or enforcement of the law;
Whether workers are experiencing threats, fear, or actual retaliation which discourages them from reporting violations or participating in an investigation due to their immigration status which can be used to undermine DOL’s enforcement of laws in the geographic area or industry.
Whether workers are experiencing threats, fear, or actual retaliation which discourages them from reporting violations or participating in an investigation due to their immigration status which can be used to undermine DOL’s enforcement of laws in the geographic area or industry How to Submit a Request: Advocates can submit a request for “Statement of DOL Interest” by emailing statementrequests@dol.gov with the subject line “Request for Statement of DOL Interest.”
The DOL asks requesters to include the following information:
A description of the labor dispute and how it is related to the laws enforced by DOL;
A description of any retaliation or threats workers may have witnessed or experienced related to labor disputes; and
A description of how fear among workers of potential immigration-related retaliation or immigration enforcement in the future may stop workers from reporting violations or cooperating with the DOL.
Requesting an Updated SOI: The DOL will consider a request for an updated SOI on a case-by-case basis. Requests for updated SOIs should be sent to the same email as above, with the subject line “Updated Statement of US DOL Interest Request.” The DOL recommends that workers and their advocates submit a request for an updated SOI no less than 160 days prior to the expiration of a worker’s grant of deferred action.
In the email, workers should clearly indicate that they are seeking an updated SOI to support a subsequent request to DHS, as well as provide information about the worksite and the date the initial SOI was provided. Requesters are also encouraged to provide any additional information relating to the factors above that the DOL uses to assess the need for an SOI.
Generally, the DOL will respond to an SOI request, whether it be for an initial SOI or updated SOI, within 30 days with a final determination or an update on the status of the request.
U.S. Equal Employment Opportunity Commission (EEOC):
The EEOC is responsible for enforcing federal laws that prohibit discrimination against an employee or job applicant because of the person’s race, color, religion, sex (which includes gender identity and sexual orientation), national origin, and disability. It enforces these laws in many different work situations, including hiring, firing, promotions, harassment, wages, benefits, and training.
Eligibility: Someone requesting an SOI does not need to have filed a formal charge of discrimination with the EEOC. However, they will need to describe their experience or information as it relates to an open or closed EEOC investigation/litigation and why they believed deferred action would help EEOC carry out its enforcement mission and goals.
How to Submit a Request: Requesters or their representatives should look up the EEOC Field Office that is nearest to them on the EEOC website and identify the District Director and Regional Attorney of the applicable field office. The requestor or advocate must email the request to both the District Director and Regional Attorney by inserting their first and last name into the following email format: firstname.lastname@eeoc.gov.
The request should include the following information:
Information to identify the workplace involved in the relevant EEOC investigation or litigation;
Information about how the request relates to an open/closed EEOC investigation or litigation, including any acts of related retaliation, and whether a grant of deferred action would help the EEOC carry out its enforcement mission and priorities. This should also include information about retaliation, whether immigration-related or otherwise, or fear of such retaliation, that is likely to deter employees from reporting to the EEOC or participating in its investigations or litigation; and
The NLRB is a federal agency that protects the rights of private employees to organize, with or without a union, to improve their wages and work conditions. It also aims to prevent unfair labor practices committed by private employers and unions.
Eligibility: Workers and their representatives may submit an SOI request if there is an ongoing NLRB investigation or enforcement action at the worker’s worksite and you are able to explain how immigration relief is necessary at that workplace to protect workers who may be willing to cooperate with NLRB’s investigation or enforcement action, but fear retaliation for doing so.
How to Submit a Request: Requests should be directed via email to all of the following: the Board Agent assigned to the case, the Immigration Coordinator in the Region, the Regional Director, and the Immigration Team at Immigration.Team@nlrb.gov .
Requests should include the following information:
The NLRB case number;
The location of the worksite involved in the NLRB action and employer’s name as it appears on paystubs or other documents
The CRD enforces California’s civil rights law which protects against unlawful discrimination or harassment in the workplace because of a protected category (such as a person’s race, sex, national origin, disability, religion, among others). The agency also investigates complaints of human trafficking and hate violence.
Eligibility: A requester does not need to have filed a formal complaint with CRD to request an SOI. Instead, a worker must only explain how the request relates to an open or closed CRD investigation or why the deferred action will help further CRD’s mission, priorities, or enforcement of the Fair Employment and Housing Act (FEHA).
How to Submit Request: An advocate can request an SOI by submitting an email request to SOIRequest@calcivilrights.ca.gov with the subject “Request for Statement of Interest.”
In the request, a worker must provide the following information:
Employer name and address, relevant dates of employment and illegal actions and the names of other people involved (alleged wrongdoers, witnesses, etc.); the requestor can remain anonymous;
Detailed description of how the request is related to a CRD investigation or will further the CRD’s mission, priorities, and enforcement of FEHA.
Detailed description of employer’s conduct or fear of retaliation that may stop worker(s) who may be covered by an SOI from reporting information or cooperating with CRD during an investigation; and
The LCO investigates claims involving wage theft, retaliation, child labor, licensing, and other California labor law standards.
Eligibility: A worker must have an active investigation or enforcement action against their employer with the LCO in order to request an SOI. Cases that have been closed will not qualify.
How to Submit Request: An advocate can submit an SOI request to the LCO by sending an email to LCOstatementrequests@dir.ca.gov with the subject line “Request for Submission of Statement of Interest”
The request should include:
Name and address of the employer, worksite address, LCO case number, and LCO unit investigating or providing enforcement, if known
A brief description of the case and impact of the violations on the workers
A description of retaliation or threats workers at the worksite may have witnessed or experienced related to labor disputes/immigration status
California Agricultural Labor Relations Board (ALRB):
The ALRB protects the working conditions and collective bargaining rights of agricultural workers in California. The agency investigates unfair practices in the agricultural sector and enforces the California Agricultural Labor Relations Act.
Eligibility: A worker can submit a request for SOI with the ALRB during an active ALRB investigation or proceeding against their employer.
How to Submit Request: Workers or advocates can submit a request to Generalcounsel@alrb.ca.gov with the subject line “Request for Submission of Statement of Interest.” The requests can also be made on behalf of a group of workers.
The request should include the following information:
Name and address of the employer, worksite address, ALBR case number, if applicable
A brief description of the case and impact of the violations on the workers
A description of retaliation or threats workers at the worksite may have witnessed or experienced related to labor disputes/immigration status
Cal/OSHA oversees the investigation and enforcement of workplace safety or health labor standards in California.
Eligibility: A worker can submit an SOI request in certain active inspections or appeals of citations by employers. The request may also be made on behalf of a group of workers.
How to Submit a Request: Workers or advocates can send their request to DOSHStatementRequests@dir.ca.gov with the subject line “Request for Submission of Statement of Interest.”
The request should include the following information:
Name and address of the employer, worksite address, Cal/OSHA inspection number, if applicable
A brief description of the case and impact of the violations on the workers
A description of retaliation or threats workers at the worksite may have witnessed or experienced related to labor disputes/immigration status
