Bloomberg Law
Jan. 13, 2023, 4:26 PMUpdated: Jan. 13, 2023, 8:04 PM

Migrant Workers Get Labor Protections Under New DHS Policy (1)

Andrew Kreighbaum
Andrew Kreighbaum
Rebecca Rainey
Rebecca Rainey
Senior Reporter
Ellen M. Gilmer
Ellen M. Gilmer

The US Department of Homeland Security has released instructions on how migrant workers can claim protections from deportation or other immigration enforcement if they are involved in labor disputes.

The guidelines, released Friday, lay out the process for undocumented workers to apply for enforcement relief known as deferred action if they have been victims of or are participating in an investigation involving violations of labor law.

Workers will be able to apply for the relief on the DHS website and the agency will provide “a single intake point for deferred action requests,” the agency said in an announcement. The system will allow DHS to “efficiently review these time-sensitive requests, provide additional security to eligible workers on a case-by-case basis, and more robustly support the mission of labor agencies,” the administration said.

“Unscrupulous employers who prey on the vulnerability of noncitizen workers harm all workers and disadvantage businesses who play by the rules,” Secretary of Homeland Security Alejandro N. Mayorkas said in a statement on the new process. “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.”

The move is the latest in a series of efforts by the Biden administration to support immigrant workers, especially those facing unfair or unsafe working conditions. DHS in 2021 announced it would cease workplace raids targeting undocumented immigrants and instead focus on employers Secretary Mayorkas deemed “unscrupulous.”

The Labor Department last year issued guidance stressing that workers can file labor complaints regardless of immigration status. It provided steps for workers to request the agency’s formal support in asking DHS to exercise prosecutorial discretion in immigration enforcement against them.

The National Labor Relations Board also announced in 2021 that it would seek immigration relief—including deferred action, parole, or stay of removal—for undocumented workers seeking to protect their rights to organize in the workplace.

NLRB General Counsel Jennifer Abruzzo told regional field offices in a memo that the agency can’t effectively enforce the National Labor Relations Act if witnesses are afraid to offer their testimony because of their immigration status.

Path to Protections

While DHS has previously considered requests for deferred action, US Citizenship and Immigration Services will become the main intake point for those requests. If a worker is already in removal proceedings, USCIS will forward the request to US Immigration and Customs Enforcement.

Requests will require a statement of interest from a federal, state, or local labor agency. Deferred action typically lasts two years and can be terminated at any time. Workers granted those protections may be eligible for renewals if investigations are ongoing, and could be eligible for employment authorization documents as well.

To make sure the policy works, the Biden administration next needs to make sure workers actually know about the process, said Nadia Marin-Molina, co-executive director of the National Day Laborer Organizing Network.

“It’s not an easy population to reach,” she said. “But if President Biden says clearly the policy of the government is to protect the rights of immigrant workers, then they will hear that.”

Empowering Workers

While DHS has long had the authority to grant deferred action, the guidance will make the process for requesting protections more accessible and offer peace of mind to workers thinking of coming forward to protect their rights, said Andrew Walchuk, senior policy counsel and director of government relations at Farmworker Justice.

“Workers desiring to speak out face the constant threat that any employer could ‘call ICE’ and have them deported from the country, separating them from their families,” Walchuk said. “This illegal retaliation, whether threatened or realized, creates a pervasive chilling effect among vulnerable workers.”

The policy is a key step toward holding abusive employers accountable, said Rachel Micah-Jones, founder and executive director of Centro de los Derechos del Migrante Inc. She said labor advocates will closely watch how long it takes for individual workers to receive deferred action and approval for work permits.

“Especially for guestworkers, expedited processing and access to work authorization will be really key for them to be able to stay here and pursue their cases,” she said.

Responding to Pressure

The guidance released by the Biden administration comes after months of pressure from immigrants’ rights groups, labor advocates, and Democratic lawmakers.

Congressional Progressive Caucus Chair Pramila Jayapal (D-Wash.) and other lawmakers recommended in a letter last year that the agency adopt a process that allows immigrants involved in civil rights or labor disputes to request temporary protection from immigration enforcement and obtain work permits. They also called for the reestablishment of an interagency group including DHS, Labor, the NLRB, the Equal Employment Opportunity Commission, and other offices to “ensure timely protections for workers.”

Advocacy groups made a similar push in November, arguing that the threat of deportation leaves many workers powerless to speak out about labor violations and leads to lower wages and working conditions across the board.

(Updated with additional reporting throughout. )

To contact the reporters on this story: Andrew Kreighbaum in Washington at; Rebecca Rainey in Washington at; Ellen M. Gilmer in Washington at

To contact the editors responsible for this story: Genevieve Douglas at; Sarah Babbage at