DHS Announces New Effort to Hold Employers Accountable

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In January, the Department of Homeland Security announced that noncitizen workers who are victims or witnesses to labor rights violations can now access streamlined and expedited deferred action request process. Deferred action is a form of prosecutorial discretion to put off removal action (deportation) against a noncitizen for a certain period of time. Although deferred action does not confer lawful status or excuse any past or future periods of unlawful presence, a noncitizen granted such action is considered lawfully present in the United States for certain limited purposes while the deferral is in effect. If granted deferred action, a noncitizen may be eligible for employment authorization.

This announcement is a second-step expanding a Worksite Enforcement Strategy that began in 2021. The policy seeks to reduce demand for illegal employment by “delivering more severe consequences to exploitative employers” and to increase the willingness of workers to report violations of law by their employers. 

Reasoning that workers often do not report violations by exploitative employers or cooperate in employment and labor standards investigations because they fear removal or other immigration-related retaliation by an abusive employer, Secretary of Homeland Security Alejandro N. Mayorkas said, “We will hold these predatory actors accountable by encouraging all workers to assert their rights, report violations they have suffered or observed, and cooperate in labor standards investigations.”

In addition to receiving deferred action in removal cases, eligible victims and witnesses of employer malfeasance could receive U and T visas or parole in place.

Several agencies such as OSHA, Wage and Hour, Equal Employment Opportunity Commission, the National Labor Relations Board, and state entities can submit requests through a single intake point for deferred action requests from noncitizen workers that are supported by labor enforcement agencies.

The public announcement expanding and implementing the Worksite Enforcement Strategy is a reminder that employers should take seriously their employment practices, as many workers may now see an incentive to cooperate with agency investigations and law enforcement.  If you would like additional information on this or any related issues, please contact the Maynard Nexsen Employment & Labor Law Group.