DHS Policy Extends More Protections for Undocumented Workers Involved in Labor Investigations
Immigrant workers, including undocumented workers, are protected by federal and California wage and hour laws regardless of their citizenship status. Like other workers, immigrant workers have the right to organize a union and collectively bargain with employers under the National Labor Relations Act (NLRA). However, undocumented workers remain one of the most exploited groups in the country’s workplaces due to the threat of immigration-related retaliation.
In an effort to ensure that employers comply with labor laws, under the Biden administration, the U.S. Department of Homeland Security (DHS) announced a process to permit undocumented workers who are victims of, or witnesses to, violations of labor laws to apply for “deferred action.” Deferred action is not new, but is a process that allows DHS to grant the worker temporary protection from deportation. In January 2023, DHS issued guidelines that explain how applicants can apply for this protection. According to DHS, this process is now “streamlined and expedited.”
To apply for deferred action under this process a worker will be asked to submit several items, including a written request stating the basis for the request, a letter from a labor or employment agency in support, and evidence that the worker was employed during the relevant period of the agency’s investigation. Once a worker is granted deferred action through this process, they may apply for and obtain employment authorization for the period of deferred action.
Through this process, DHS may finally hold firm to its commitment, communicated by the Secretary of Homeland Security in an October 2021 memorandum, to “protect the American labor market, the conditions of the American worksite, and the dignity of the individual.” Now, more than ever, undocumented workers should feel empowered to assert their rights that have been long promised, but yet wrongfully denied, by labor laws.
For more information regarding labor law or its connection to immigration status, please contact your legal counsel.