Guidance on DHS deferred action process in worksite investigations
The Department of Industrial Relations’ Labor Commissioner’s Office (LCO) and Division of Occupational Safety and Health (Cal/OSHA), and the Agricultural Relations Board (ALRB) have posted guidance for workers and their advocates to request that the departments submit a Statement of Interest to the U.S. Department of Homeland Security (DHS) in support of immigration-related prosecutorial discretion to facilitate a worksite investigation. Such requests for support will be considered on a case-by-case basis, when the departments are actively investigating potential labor violations at a particular worksite or employer.
Because DHS cannot respond to all immigration violations within its jurisdiction, it exercises prosecutorial discretion to determine if or when to pursue removal (deportation) of immigrants. DHS may exercise prosecutorial discretion at any step in the immigration process, such as deciding whom to detain or release, or deciding whether to settle or dismiss a case. One type of prosecutorial discretion is called “deferred action.” Although deferred action does not confer lawful status, a noncitizen granted deferred action is considered lawfully present in the United States for certain limited purposes and may be eligible for work authorization.
DHS recently announced a new streamlined and expedited process to request deferred action for noncitizens who are victims of, or witnesses to, violations of labor rights. California is coordinating with DHS to aid noncitizen workers with such deferred action requests, and began doing so prior to DHS’s recent announcement. LCO was the first state agency to request deferred action from DHS for employees in an active investigation, and that request was successful.
Effective investigation of complaints and enforcement of workers’ rights depends on the cooperation of workers. Some workers may fear providing information will result in retaliation based on their immigration status or lead to the disclosure of their or their family member’s immigration status. This policy provides an additional tool for California labor enforcement departments to help address some workers’ concerns about employer retaliation based on their immigration status.
LCO, Cal/OSHA and ALRB have posted FAQs on the deferred action process which can be found here:
LCO, Cal/OSHA and ALRB enforce rights under the California Labor Code regardless of the immigration status of the impacted workers. The departments do not enforce immigration laws. Therefore, they do not ask about immigration status. Workers in California are protected by California labor laws regardless of immigration status.