Featured Issue: Deferred Action for Noncitizen Workers Supporting Labor Enforcement Investigations

DHS announced that noncitizen workers who are victims of, or witnesses to, the violation of labor rights, can now access a streamlined and expedited deferred action request process. Deferred action protects noncitizen workers from threats of immigration-related retaliation from exploitive employers. Effective as of January 2023, this new process should improve DHS’s longstanding practice of using its discretionary authority to consider labor and employment agency-related requests for deferred action on a case-by-case basis.

On January 17, 2024, DHS announced that over one thousand noncitizen workers who were victims of or witnesses to a labor rights violation have been protected. DHS also announced guidance for noncitizen workers requesting a renewal of deferred action for an additional two years through these processes.

DHS FAQs:

22: Can a noncitizen initially granted a two year period of deferred action and related employment authorization request an increase of the initial grant period from two to four years?

Yes. To request that the initial period of deferred action and related employment authorization be increased from two to four years, a noncitizen should submit the following to the address listed in Question 3 above:

• Form G-325A, Biographic Information (for Deferred Action). Please write “Labor DA Extension” on the top portion of the form.
• A written request signed by the noncitizen stating the desire to increase the deferred action period from two to four years;
• Proof of the noncitizen’s identity and nationality;
• The Statement of Interest from a labor or employment agency that supported the initial deferred action request;
• A copy of the approval notice from the initial deferred action request;
• Form I-765, Application for Employment Authorization, with the appropriate fee or request for a fee waiver; and
• Form I-765WS, Worksheet.

If a noncitizen is unable to pay the Form I-765 filing fee, they must file Form I-912, Request for a Fee Waiver.

If granted, the period of deferred action, and related employment authorization, will generally be up to a total of four years from the date of the initial grant of deferred action.

23. A noncitizen was initially granted deferred action for a period of two years. If the noncitizen submits a request to increase their initial deferred action time period from two years to four years, are they required to replace their employment authorization card to reflect a total of four years of validity?

Yes. Extending the initial authorized period of deferred action from two years to four years does not automatically extend the validity period of employment authorization. To remain employment authorized for the duration of their deferred action, a noncitizen must file a new I-765 and I-765 WS with fee or request for a fee waiver. If the noncitizen does not submit the I-765 and I-765WS with their request to extend the initial deferred action period from two years to four years, this may result in additional processing delays, denials, and loss of employment authorization.

24. If a noncitizen was granted a two-year subsequent period of deferred action, can they request that the period be increased to four years?

No. If a noncitizen requested and were granted a subsequent period of deferred action, they have already obtained an initial two-year period and a subsequent two-year period for a total of four years. If there is a labor agency need beyond the four-year period of deferred action that the noncitizen has already obtained, the labor agency may issue a new Statement of Interest and the noncitizen may request another subsequent period of deferred action on that basis.

For more information, visit DHS’s website: DHS Support of the Enforcement of Labor and Employment Laws

Agency Guidance and Announcements

• DOJ Provides FAQs on Support for Workers’ Deferred Action Requests to DHS – June 20, 2024
• DHS Announces Process for Requesting Renewal of Deferred Action for Exploited Employees – January 17, 2024
• DHS PowerPoint on Its Efforts to Support Labor Agencies Through Worker Protection – June 8, 2023
• DHS Will Streamline and Expedite Deferred Action for Noncitizen Workers Supporting Labor Enforcement Investigations – January 13, 2023

AILA Resources

• AILA and Partners Send Letter to DHS on Prosecutorial Discretion for Labor Disputes – November 17, 2022