What is deferred action? If approved for deferred action, what do I get?
Deferred action is a form of prosecutorial discretion and enables people to get protection from deportation. You do not need to be in deportation proceedings to be eligible for deferred action. Approved applicants can also get a work permit and apply for a valid social security number. You may be familiar with DACA for “DREAMers”. DACA stands for Deferred Action for Childhood Arrivals. Deferred Action for Labor Enforcement (DALE) is another type of deferred action for those victims of or witnesses to labor rights violations.
Does deferred action change my immigration status?
Deferred action does not mean the undocumented or non-citizen worker gets lawful status. It also does not excuse past or future unlawful presence in the U.S. However, if you are an undocumented person or a non-citizen worker and are granted deferred action, you get temporary protection from deportation and will be considered lawfully present in the U.S. for certain limited purposes while the deferred action is in effect.
Is this a new program? What changed recently in relation to Deferred Action for Labor Enforcement (DALE)?
The Department of Homeland Security (DHS) has been considering requests for deferred action by noncitizen workers for some time but in January 2023, it announced a streamlined and expedited deferred action request process to grant workers deferred action on a case-by-case basis.
“These improvements advance the Biden-Harris Administration’s commitment to empowering workers and improving workplace conditions by enabling all workers, including noncitizens, to assert their legal rights.”
This victory is the result of years of organizing by workers, unions and labor organizations, worker centers, advocates, organizers, and courageous deferred applicants who paved the way for others! Thank you for your courage and leadership.
Why was this program created?
The main objective of DALE is to bridge the gap between labor law enforcement and undocumented workers. Undocumented workers are especially vulnerable to workplace abuse because of their status. There is a long history of employers exploiting workers’ immigration status to suppress worker rights and avoid complying with labor laws on wage theft, unsafe working conditions, and the right to unionize. Many undocumented and noncitizen workers are afraid to report labor or employment violations and/or abuse because they fear deportation/removal or other immigration-related retaliations from their employer.
This program aims to create an environment where all workers can come forward without fear of immigration consequences. As a result, labor agencies can better investigate and address labor law violations. Ultimately, this type of policy makes working conditions better for all.
Who qualifies for Deferred Action for Labor Enforcement (DALE)?
To qualify for DALE, you need:
- Your current (or possibly former) employer to be the subject of a labor dispute/open investigation at a labor agency AND
- The labor agency investigating the labor dispute to issue a letter (statement of interest) supporting deferred action for all workers.
What is considered a labor dispute?
For the purposes of this process, a labor dispute is when a worker or group of workers at a particular worksite reports a labor or employment law violation to a federal, state, or local agency that initiates an investigation.
Example: If an employer is not paying overtime, not providing the right number of breaks, forcing people to clock out before they have stopped working, is not providing adequate safety equipment, or is preventing workers from unionizing, the employees might complain to the employer and might also report the violation to a local, state, or federal labor agency. If you believe that your employer is violating workplace rights, contact a local worker rights organization/union.
What is the Statement of Interest and how do I get it?
A Statement of Interest is a letter that is issued by a labor or employment agency. The letter may be issued following a compliant/allegation of labor dispute. It’s important to note that the undocumented workers should not be named in the dispute and the violations need not be specific to these workers.
For example, the IL Department of Human Rights specifically says:
“Disclosure of individual worker names is not necessary to establish that IDHR has an active investigation or enforcement action. When emailing a request, requesters should not disclose:
– An individual’s immigration status or history; or
– Sensitive personally identifiable information, such as birth date, Social Security Numbers, Alien Registration Numbers or Individual Taxpayer Identification Number (ITIN).”
The Statement of Interest is typically general in nature (i.e. not individual specific). Importantly, it can typically be used by all workers in the workplace to apply for deferred action.
Note that a Statement of Interest alone does not grant immigration status or provide protection from deportation proceeding. An individual must use the Statement of Interest to then file a deferred action application with the United States Citizenship and Immigration Services (USCIS).
How do I apply for Deferred Action for Labor Enforcement (DALE)?
Once the Statement of Interest is received, the undocumented or non-citizen worker can use this letter to apply for deferred action with the USCIS. The agency will send the Statement of Interest directly to the USCIS so they have it on file. The letter should be general in nature – it should just disclose the name of the employer and the time period and description of the violations to the workers as a whole.
The deferred action request to the USCIS should include things like:
- A signed request for deferred action describing the basis for the request
- A letter or Statement of Interest to support the request
- Evidence to establish that the worker falls within the category of workers identified in the letter or statement of interest such as W-2s, paystubs, time cards, or other documentary evidence to demonstrate that the worker was employed during the period
- Evidence of any additional factors supporting a favorable exercise of discretion
- Proof of the noncitizen’s identity and nationality
- If applicable, any document used to lawfully enter the U.S. or other evidence relating to the noncitizen’s immigration history or status
- Form G-325A, Biographic Information (for Deferred Action)
- Form I-765/ Form I-765WS with the applicable, non-refundable fee and
- Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, if applicable
The below graphic is extremely helpful in visualizing the steps involved in a DALE case.
How long does deferred action last?
Deferred action generally lasts 2 years but may be subject to termination at any time. It can also potentially be renewed depending on circumstances like ongoing labor complaints/disputes.
Are there any risks to filing for deferred action?
As with all immigration legal matters, there are benefits and risks. Given the potential risks involved, we highly recommend that you consult with an experienced immigration attorney or accredited representative about your specific situation before filing anything with the USCIS. For some applicants, deferred action can be a great option. For others, there may be some risks and we want to make sure that you understand these risks and then make an informed decision about whether, or not, to file for deferred action.
Please contact our office on 773-828-9544 or info@mcenteelaw.com if you would like to set up a time to talk to an attorney about a possible Deferred Action for Labor Enforcement (DALE) case.
Authors: Katherine Del Rosario & Fiona McEntee
