U.S. Department of Labor’s New Frequently Asked Questions Regarding Immigration-Related Prosecutorial Discretion: What You Need to Know

On July 6, 2022, the U.S. Department of Labor (DOL) issued guidance in the form of a Frequently Asked Questions (FAQ) document titled “Process for Requesting Department of Labor Support for Requests to the Department of Homeland Security for Immigration-Related Prosecutorial Discretion During Labor Disputes.” The FAQ clarifies the process by which workers involved in labor disputes can request DOL’s support for the Department of Homeland Security (DHS) to exercise prosecutorial discretion in their favor. Such immigration-related prosecutorial discretion may take various forms, including a decision by DHS to end or to not initiate enforcement proceedings against a worker on a case-by-case basis. DHS also possesses discretionary authority to grant deferred action and immigration parole, which can provide a basis for workers to access employment authorization.

Immigrant workers have long campaigned for DHS and DOL to clarify and streamline the process for obtaining these protections. These temporary protections make it safer for workers to speak up about harmful treatment in the workplace, such as unpaid wages and unsafe conditions, without fear of employer retaliation. Immigrant workers, as the FAQ recognizes, must be able to make complaints to DOL and participate in its worksite investigations without fear of immigration-based retaliation for DOL to carry out its mission and effectively enforce the laws within its jurisdiction. These protections are particularly important given the elevated levels of exploitation, labor violations, and retaliation faced by immigrant workers.

While the DOL’s FAQ is a major step toward more effective enforcement of our nation’s core labor and employment standards and comes after years of courageous organizing by immigrant workers, it is not enough.

DHS must now release its guidance to clarify the process by which workers can seek prosecutorial discretion based on their involvement in a labor dispute.