On January 13, 2023, the Department of Homeland Security announced that noncitizen workers in the US who are victims or witnesses of labor rights violations in the workplace will be able to apply for a new streamlined and expedited deferred action process. Traditionally, victims and witnesses of labor violations would sometimes avoid reporting to government agencies out of fear of retribution by an employer or due to a lack of legal status in the United States. Now eligible applicants will be granted deferred action which results in work authorization and protection from deportation, so that federal agencies may fully investigate and charge abusive employers without the victims and witnesses fearing that they will lose their status or be deported. Types of abuses ranging from nonpayment of wages to unsafe working conditions to preventing collective bargaining, among others.
Requirements for the New Program
The Department of Homeland Security states that the new program is a streamlining of previous programs and authority to grant protection to noncitizens. Persons wishing to apply for protection from DHS are advised to submit as much information as possible so they can consider all the positive and negative factors in their case. To be considered for the program victims and witnesses must submit the following:
· A formal written request explaining what happened and why they are eligible for deferred action;
· Statement of Interest from a labor or employment agency supporting the request;
· Proof supporting the statement such as W-2s, pay stubs, time cards, or other documentary evidence showing the victim or witness was employed by the employer during the time outlined in the statement from the appropriate agency;
· Evidence of any additional factors supporting a favorable exercise of discretion, which can include letters of support from friends or family, evidence of unique circumstances or specials needs, proof of involvement with the community, etc.;
· Proof of the noncitizen’s identity and nationality.
· 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
Deferred Action is a discretionary privilege that can be granted after the Department has reviewed all the required documents. While under deferred action, noncitizens will be protected from deportation or removal proceedings. They can even apply if they are currently in removal proceedings in the Immigration Court or have been ordered removed in the past. The period of deferred action will typically last two years and is subject to termination at any time. If an investigation continues past the two-year period, the Department has stated that extensions may be possible. While a noncitizen is granted deferred action, they may be eligible to receive a work permit.
Benefits of Deferred Action
Most importantly, this program may serve as a starting point for other, more permanent forms of relief such as a U or T Visa. The protections and opportunities for those who have been taken advantage of by abusive employers because of their immigration status or lack of status will be dependent on cooperation with government agencies and it is important to speak to an experienced attorney about the facts of their case. With such a dramatic change in how the Department of Homeland Security is handling these cases, it is important to start preparing their case right away.
If you or someone you know has been the victim of workplace abuse because of their Immigration status, contact one of our offices for a consultation with an attorney who specializes in requests for deferred action. We offer telephonic, video, and in-person consultations at our offices in Orange, Riverside, San Diego, Fresno, Sacramento,
ABOUT THE AUTHOR(S)
Danny Chrisney is the managing lawyer at the Wilner & O’Reilly | Phoenix office. The son of a Guatemalan immigrant, Danny speaks fluent Spanish. Growing up in the Latino community of Southern California Danny saw how our nation’s immigration laws could shape the lives of those around him. Danny received his Juris Doctor degree from the Sandra Day O’Connor College of Law at Arizona State University where he graduated with Highest Pro Bono Distinction. While attending law school Danny worked with USCIS at the Phoenix Field Office. There he received a Certificate of Appreciation for his legal research. He was also able to work as a law clerk for the Florence Immigrant and Refugee Rights Project, Children’s Division, a non-profit organization dedicated to providing legal services to unaccompanied minors and other refugees. He worked closely with Indigenous Guatemalan children in the areas of Asylum and Special Immigrant Juvenile Status.