Deferred Action for Noncitizen/Undocumented Workers in Labor Disputes

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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? 

Workers may ask DHS for a renewal of their initial grant of deferred action for an additional two years, when there continues to be an ongoing labor agency need. 

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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