In January 2023, the U.S. Department of Homeland Security announced a streamlined and expedited process to grant Deferred Action to workers who are victims or witnesses of labor violations. Known as Deferred Action for Labor Enforcement, or DALE, the program protects workers from deportation while the labor investigation is ongoing. If granted, the protection lasts for four years.
DALE requires individuals to come forward and share their immigration status with USCIS, which can carry inherent risks depending on the background of an individual.
Because DALE is a temporary program of the Biden administration, it could be rescinded under President Trump as happened with similar programs in the past. Documented spoke with attorneys to learn about the benefits and risks of applying for deferred action at the moment, as well as the alternatives available to individuals who have experienced labor violations in their workplace.
What is Deferred Action for Labor Enforcement
DALE is a program introduced by the Biden administration with the purpose of protecting undocumented workers from retaliation by employers during an investigation of workplace violations.
“Workers are sometimes afraid to report violations of law by exploitative employers or to cooperate in employment and labor standards investigations because they fear removal or other immigration-related retaliation due to reports by an abusive employer,” DHS said in a statement.
Under DALE, workers who have faced or witnessed violations, and are eligible, are granted Deferred Action, a discretionary measure provided by DHS. Those granted Deferred Action under DALE are protected from deportation for four years. Deferred Action does not grant a lawful status, but beneficiaries can apply for a work permit during the deferred period.
Eligibility and requirements for Deferred Action
According to Vivianna Morales, Labor & Employment Partner at Pechman Law Group, PLLC, in order to qualify for the program, an employee must have been a witness or have experienced a violation of labor or employment law and have filed a complaint about the violation with a local, state or federal agency. The procedure to file a complaint varies per agency.
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“This can be wage hour violations, harassment, discrimination, workplace violence, workplace health and safety violations, retaliation against workers for collectively complaining about their work conditions,” Morales said.
She mentioned that the labor violation needs to be one that is recognized under federal or state law and that a federal agency, state agency, or local law enforcement agency investigates. “These agencies can include OSHA, NLRB, USDOL, EEOC, NYSDOL, or NYSDHR just to name a few.”
Another requirement to be eligible for the program is to have a Statement of Interest (SOI), “which is the government saying that they are interested in the person staying in the country because they want them in order to investigate a workplace violation,” Elizabeth Saylor, Citywide Director of the Employment Law Unit at The Legal Aid Society, said.
The Statement of Interests must be requested by the employee or the lawyer to the agency doing the investigation, at which point such agencies will decide, at their discretion, if they provide a SOI and send it to DHS directly.
“Some agencies are faster than others and more generous in issuing them, but it is available for any New York City and New York there are agencies that help protect most of your employment rights,” Saylor said.
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Depending on the agency, the requirements to ask for a SOI will vary. The New York Department of Labor requires workers to seek the assistance of an attorney or advocate to make the SOI request, citing its importance to pursuing Deferred Action.
(Requests for Deferred Action for Workers in Support of Labor Agency Investigations English Infographic by USCIS)
Where and how to apply for Deferred Action
It is strongly recommended to seek the guidance of an accredited immigration attorney by the Department of Justice, provided that seeking Deferred Action involves sharing immigration status with immigration agencies.
To apply for Deferred Action for Labor Enforcement, those eligible and interested must apply through the United States Citizenship and Immigration Services (USCIS). There is no fee to submit the required paperwork.
The forms should be submitted to:
USCIS
Attn: Deferred Action – Labor Investigations
10 Application Way, Montclair, CA 91763-1350
Do I need an immigration lawyer or a labor lawyer?
Depending on the case, the need for a combination of a labor lawyer and an immigration lawyer might be needed. Saylor said that a labor lawyer might handle the first stage of the process — which includes filing the labor violation, for example — and an immigration lawyer will handle the evaluation of eligibility, risks of seeking deferred action and submitting the forms with USCIS.
Saylor and Morales both reiterated that speaking an immigration attorney is important when seeking Deferred Action, as it is discretionary and that someone’s immigration status and criminal records could impact their eligibility.
Is Deferred Action a lawful status?
DALE grants deferred action for a period of four years. However, Deferred Action does not confer legal status, rather it offers protection from deportation from that period of time. Because it is discretionary, and specific to the Biden administration, could also be taken away when the next administration changes, Morales said.
Should I apply for Deferred Action under DALE?
Sharing your immigration status with ICE always poses a risk. Saylor recommends speaking with an attorney to see if deferred action is the best option, as there are other visa categories — like U and T Visa — which provide pathways to a legal status.
