Practice Manual: Labor-Based Deferred Action

On January 13, 2023, the Department of Homeland Security announced a “streamlined and expedited deferred action request process” for non-citizen workers who have worked or are working in a workplace where a labor agency is investigating or pursuing enforcement of labor rights violations (“Labor-Based Deferred Action”).

Labor-Based Deferred Action is designed to support the efforts of federal, state, and local labor and employment agencies to enforce labor and employment law and hold abusive employers accountable by mitigating workers’ fear of removal or immigration-related retaliation. Labor-Based Deferred Action confers deferred action and work authorization for a four-year period. Those approved may make subsequent requests for additional two-year grants of Labor-Based Deferred Action if supported by the labor or employment agency.

This streamlined process to apply for Labor-Based Deferred Action is the direct result of more than a decade of worker-led organizing to secure concrete protections against immigration-based retaliation by exploitative employers. A long legacy of exploitation of immigrant workers in the U.S., aided by immigration restrictions, employer retaliation, and immigration enforcement, has made it difficult for noncitizen workers to vindicate their labor rights and caused legitimate fears of reporting to labor agencies, undermining labor standards enforcement. In the past several decades, specific instances of employers weaponizing immigration enforcement have illustrated how immigration enforcement can undermine worker organizing and labor enforcement.

Starting in 2011, federal agencies began to address this problem through interagency deconfliction agreements that aimed to separate immigration and labor law enforcement in certain instances and to enact protocols for restraint in immigration enforcement while labor agencies are investigating labor violations. But those agreements were insufficient to adequately protect immigrant workers participating in labor agency investigations, and so immigrant worker leaders, worker centers, unions, and advocates continued to push for stronger policies to protect workers. The Labor-Based Deferred Action process is a testament to the courage and persistence of the brave immigrant workers who have stood up for workers’ rights in the face of threats and retaliation.

This Practice Manual is intended for immigration practitioners representing workers applying for Labor-Based Deferred Action. The manual is intended for authorized immigration practitioners and is not a substitute for independent legal advice provided by immigration practitioners familiar with a client’s case.