1 Practice Manual: Labor-Based Deferred Action1 March 24, 2023 I

Practice Manual: Labor-Based Deferred Action

March 24, 2023

I. Introduction _____________________________________________________________ 2

II. Applying for Labor-Based Deferred Action ____________________________________ 3

A. What is Deferred Action? _______________________________________________________ 3

B. Who is Eligible for Labor-Based Deferred Action? __________________________________ 5

1. Identifying and Reporting Labor and Employment Law Violations ____________________________ 7

2. Obtaining a Labor or Employment Agency Statement of Interest _____________________________ 10

C. Screening & Counseling for Labor-Based Deferred Action __________________________ 13

1. Immigration Screening Interview ______________________________________________________ 13

2. Understanding Immigration and Criminal History—FOIAs & Other Record Requests ____________ 15

3. Counseling _______________________________________________________________________ 17

D. Preparing a Labor-Based Deferred Action Application _____________________________ 20

1. Contents of Deferred Action and Employment Authorization Packet __________________________ 21

2. Jurisdiction Over the Deferred Action Application—USCIS vs. ICE __________________________ 26

3. Timing & Expedite Requests _________________________________________________________ 27

4. Follow-Up & Troubleshooting ________________________________________________________ 28

5. Responding to Requests for Evidence (RFE) _____________________________________________ 29

6. Approval of Labor-Based Deferred Action ______________________________________________ 29

7. Denials __________________________________________________________________________ 29

E. Special Circumstances _________________________________________________________ 30

1. Labor-Based Deferred Action Applicants with Significant Negative Equities (Criminal/Immigration

History) _______________________________________________________________________________ 30

2. Applying for only Labor-Based Deferred Action, without Applying for Work Authorization _______ 30

The manual is intended for authorized immigration practitioners and is not a substitute for independent

legal advice provided by immigration practitioners familiar with a client’s case. Practitioners should

independently confirm whether the law has changed since the date of this publication. The authors of this

practice manual are Mary Yanik (Tulane Immigrant Rights Clinic), Jessica Bansal (Unemployed Workers

United), Ann Garcia (National Immigration Project (NIPNLG)), and Lynn Damiano Pearson (National

Immigration Law Center). The authors would like to thank Bliss Requa-Trautz (Arriba Las Vegas

Workers Center), Cal Soto (National Day Laborer Organizing Network), Debbie Smith and Claudia

Lainez (Service Employees International Union), Shelly Anand, Elizabeth Zambrana, and Alessandra

Stevens (Sur Legal Collaborative), Angel Graf (Immigration Center for Women and Children), Stacy

Tolchin (Law Offices of Stacy Tolchin), Audrey Richardson (Greater Boston Legal Services), Anna Hill

Galendez (Michigan Immigrant Rights Center), Michelle Lapointe (National Immigration Law Center),

Lisa Palumbo (Legal Aid Chicago), Kristen Shepherd (University of Georgia School of Law Community

Health Partnership Clinic), Laura Garza (Arise Chicago), and Christina Maloney (Centro de los Derechos

del Migrante, Inc.) for their review and contributions to the practice manual.

III. Subsequent Requests for Deferred Action after Initial Approval (Renewals) _______ 32

IV. Other Types of Immigration Relief Stemming from Labor Disputes______________ 33

A. Prosecutorial Discretion in Removal Proceedings __________________________________ 33

B. Parole in Place _______________________________________________________________ 34

C. Requests for Noncitizens Presently Outside the United States ________________________ 36

D. Other related relief–T & U Nonimmigrant Visas ___________________________________ 38

1. Identifying Labor Trafficking & Eligibility for T Nonimmigrant Status ________________________ 40

2. Identifying Labor-Based Qualifying Crimes for Eligibility for U Nonimmigrant Status ___________ 40

V. Frequently Asked Questions _______________________________________________ 42

A. Advance Parole & Travel Outside the United States ________________________________ 42

B. Civil Rights Cases & Private Rights of Action _____________________________________ 43

VI. Appendices ___________________________________________________________ 44

Appendix 1: Timeline of Prior DHS Guidance on Labor Disputes _________________________ 44

Appendix 2: Template Request for a Statement of Interest from Labor or Employment Agency47

Appendix 3: Intake Form for Labor-Based Deferred Action and Employment Authorization __ 49

Appendix 4: Sample Labor Agency Statements of Interest _______________________________ 57

Appendix 5: Sample Cover Letter Requesting Labor-Based Deferred Action _______________ 57

Appendix 6: Sample Declaration Regarding Employment and Request from Labor-Based

Deferred Action Applicant _________________________________________________________ 57

Appendix 7: Sample I-765 Worksheet ________________________________________________ 57

Appendix 8: Redacted Labor-Based Deferred Action Approval Letter _____________________ 57

I. Introduction

On January 13, 2023, the Department of Homeland Security announced “a streamlined and

expedited deferred action request process” for non-citizen workers who experience or witness

labor rights violations [hereinafter, “Labor-Based Deferred Action”].

Guidance on the process

emphasizes DHS’s role in supporting federal, state, and local labor and employment agency

efforts to enforce labor and employment law and hold abusive employers accountable. Labor-

Based Deferred Action confers deferred action and work authorization for a two-year period.

Those approved may make subsequent requests for additional two-year grants of Labor-Based

Deferred Action if supported by the labor or employment agency. Labor-Based Deferred Action

represents the culmination of over a decade of worker-led organizing to demand concrete

protections against immigration-based retaliation by exploitative employers. It is a testament to

the courage of immigrant workers who have stood up for workers’ rights in the face of retaliatory

immigration enforcement.

Press Release, U.S. Dep’t of Homeland Sec., DHS Announces Process Enhancements for Supporting

Labor Enforcement Investigations (Jan. 13, 2023), https://www.dhs.gov/news/2023/01/13/dhs-announces-

process-enhancements-supporting-labor-enforcement-investigations [hereinafter “DHS Announcement”].

This Practice Manual is intended for immigration practitioners representing workers applying for

Labor-Based Deferred Action. Part II describes who is eligible and explains the application

process, including components of the application packet and practice advice. Part III addresses

subsequent requests (renewals) after the initial two-year period. Part IV describes related relief,

such as prosecutorial discretion in removal proceedings, parole, and U and T Visas. Finally, Part

V answers frequently asked questions. Publicly available appendices begin with a timeline of key

DHS memoranda and agreements that incrementally addressed the conflict between immigration

and labor enforcement, laying the groundwork for the January 13 guidance, and also include a

template request for a Statement of Interest from a labor or employment agency and an intake

form. Practitioners may view the five additional appendix documents referenced throughout this

practice manual by completing the following form:

https://tulane.co1.qualtrics.com/jfe/form/SV_3TYmLAhHX5k2hBY.

For immigration-related technical assistance questions on Labor-Based Deferred Action,

practitioners may contact: Mary Yanik (myanik@tulane.edu), Lynn Damiano Pearson

(daforworkers@nilc.org), and Ann Garcia (members of the National Immigration Project

(NIPNLG) only, ann@nipnlg.org).

II. Applying for Labor-Based Deferred Action

A. What is Deferred Action?

Deferred action is a discretionary determination by DHS to defer removal as an act of

prosecutorial discretion.

The legacy Immigration and Naturalization Service formally

recognized deferred action as a form of prosecutorial discretion in 1975, indicating that deferred

action was warranted when “adverse action would be unconscionable because of the existence of

appealing humanitarian factors.”

While DHS has therefore long held authority to consider

deferred action for a variety of humanitarian reasons, the application process has been obscure.

DHS has not published information on how to apply for deferred action generally, although it has

sometimes provided policy guidance on how the agency will consider requests from certain

applicants, such as families of U.S. Armed Forces members.

See U.S. Dep’t of Homeland Sec., DHS Support of the Enforcement of Labor and Employment Laws,

https://www.dhs.gov/enforcement-labor-and-employment-laws (last updated Feb. 3, 2023) [hereinafter

“DHS FAQ”]. While the DHS guidance issued on January 13, 2023 specifically references both deferred

action and parole-in-place as forms of prosecutorial discretion available to the agency, the Labor-Based

Deferred Action Process relies exclusively on deferred action. Id. For more on parole in place, see infra

Part IV Section B.

(Legacy) Immigration and Naturalization Service, Operating Instructions, O.I. § 103.1(a)(1)(ii) (1975).

See Memorandum from Jeh Johnson, Sec’y, U.S. Dep’t of Homeland Sec., to León Rodriguez, Dir.,

U.S. Citizenship & Immig. Servs., Families of U.S. Armed Forces Members and Enlistees (Nov. 20,

2014),

https://www.dhs.gov/sites/default/files/publications/14_1120_memo_parole_in_place.pdf; see also U.S.

Citizenship & Immig. Servs., Discretionary Options for Military Members, Enlistees, and their Families,

https://www.uscis.gov/military/discretionary-options-for-military-members-enlistees-and-their-families

(last updated Apr. 25, 2022).

DHS makes determinations to grant or deny deferred action on a case-by-case basis and a grant

of deferred action can be terminated at any time at the agency’s sole discretion. There is no

statutory or regulatory limit to the length of time for which deferred action can be granted.

However, historically, deferred action has been granted for periods of two to three years.

Individuals with deferred action are eligible for an employment authorization document with a

basic showing of economic necessity.

Through applying for employment authorization, or

separately, deferred action recipients can also apply for a Social Security card.

Social Security

cards issued to deferred action recipients state, “Valid for Work Only with DHS Authorization,”

because they do not establish employment eligibility on their own, so they must be presented

with evidence of employment authorization when used for employment eligibility verification.

Only noncitizens residing in the U.S. can seek deferred action. Deferred action does not

authorize entry into the U.S. Therefore, noncitizens who receive deferred action will not be able

to travel and re-enter the country without separate authorization.

A grant of deferred action authorizes the noncitizen’s presence in the United States. Therefore,

while deferred action does not cure unlawful presence already accrued for the purposes of the 3-

and 10-year bars, time spent in the U.S. under deferred action will not count toward the

accumulation of unlawful presence.

See Ben Harrington, Cong. Research Serv. R45158, An Overview of Discretionary Reprieves from

Removal: Deferred Action, DACA, TPS, and Others (2018),

https://crsreports.congress.gov/product/pdf/R/R45158; but see U.S. Citizenship & Immig. Servs.,

National Engagement - U Visa and Bona Fide Determination Process - Frequently Asked Questions,

https://www.uscis.gov/records/electronic-reading-room/national-engagement-u-visa-and-bona-fide-

determination-process-frequently-asked-questions (last updated Sept. 23, 2021) (stating that the initial

Bona Fide Determination Deferred Action grant is valid for four years).

8 C.F.R. § 274a.12(c)(14). While USCIS is not permitted to waive the employment authorization

application fee for applicants for DACA, 8 C.F.R. § 274a.12(c)(33), that provision does not prohibit fee

waiver for other types of deferred action, including Labor-Based Deferred Action.

The Social Security Administration and USCIS have now streamlined the process for requesting a SSN

such that relevant questions are included in the I-765. A SSN is automatically sent if employment

authorization is approved. For more on this streamlined process, as well as what to do if your client does

not receive the SSN, see Soc. Sec. Admin., Apply For Your Social Security Number While Applying For

Your Work Permit and/or Lawful Permanent Residency, https://www.ssa.gov/ssnvisa/ebe.html (last

visited March 10, 2023).

U.S. employers fill out Form I-9 for each person they hire to verify the employee’s identity and

employment authorization based on the documents they present. For more information about the I-9 form

and the list of acceptable documents, see U.S. Citizenship & Immig. Servs., I-9: Employment Eligibility

Verification (Dec. 20, 2022), https://www.uscis.gov/i-9.

It is not yet clear how USCIS will adjudicate requests for advance parole for travel from Labor-Based

Deferred Action recipients. For further discussion of advance parole, see infra Part V Section A.

Adjudicator’s Field Manual, U.S. Citizenship & Immig. Servs., ch. 40.9(b)(3)(J); Arizona Dream Act

Coal. v. Brewer, 855 F.3d 957, 974 (9th Cir. 2017) (en banc); Texas v. United States, 809 F.3d 134, 147–

48 (5th Cir. 2015) (explaining that deferred action recipients are “lawfully present” based on agency

memoranda); see also DHS FAQ, supra note 3 (“a noncitizen granted deferred action is considered

lawfully present in the United States for certain limited purposes while the deferred action is in effect”).

Those who receive deferred action, employment authorization, and a Social Security number are

eligible to receive valid state identification, including driver’s licenses, in every state.

Deferred

action grantees can receive Social Security benefits if they are otherwise entitled to them.

However, deferred action grantees are not considered “qualified aliens” for purposes of receiving

federal public benefits.

B. Who is Eligible for Labor-Based Deferred Action?

Labor-Based Deferred Action is available to “[n]oncitizen workers who are victims of, or

witnesses to, the violation of labor rights.”

As a threshold matter, to establish eligibility,

workers must provide “[a] letter or Statement of Interest from a [federal, state, or local] labor or

employment agency addressed to DHS supporting the request.”

[hereinafter, “Statement of

Interest”]. Applications submitted without a Statement of Interest will be rejected. Generally,

labor and employment agencies will issue Statements of Interest only in connection with agency

investigations or enforcement efforts (including, in some cases, closed investigations).

DHS Guidance on DACA makes clear that those with DACA or other deferred action are considered

lawfully present. See U.S. Citizenship & Immig. Servs., Consideration of Deferred Action for Childhood

Arrivals (DACA) Frequently Asked Questions (Nov. 3, 2022),

https://www.uscis.gov/humanitarian/consideration-of-deferred-action-for-childhood-arrivals-

daca/frequently-asked-questions#miscellaneous (see questions Q4, explaining that DACA is identical to

any other grant of deferred action, and Q5, explaining that those with deferred action are lawfully present

for the purposes of certain public benefits). This means that deferred action recipients can receive

federally recognized driver’s licenses or identification that are valid under the REAL ID Act. See Nat’l

Immigr. Law Ctr., REAL ID and Deferred Action for Childhood Arrivals (DACA) (Jan. 2023),

https://www.nilc.org/issues/daca/real-id-and-daca/. While some states have attempted to deny licenses to

noncitizens with deferred action, those efforts have been stymied by litigation or legislative action and all

states are currently issuing state identification to deferred action grantees. For information on further

developments in this area, see Nat’l Immigr. Law Ctr., Access to Driver’s Licenses for Immigrant Youth

Granted DACA (Jul. 22, 2020) https://www.nilc.org/issues/drivers-licenses/daca-and-drivers-licenses/.

Noncitizens in the U.S. must be in lawfully present to receive Social Security Benefits. See 42 U.S.C.

§ 402(y).

Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), Pub. L. No.

104–193, 110 Stat. 2105 (Aug. 22, 1996), § 431(b). For more information on benefit eligibility, see Tanya

Broder, Gabrielle Lessard, & Avideh Moussavian, Nat’l Immigr. Law Ctr., Overview of Immigration

Eligibility for Federal Programs (Oct. 2022), https://www.nilc.org/issues/economic-support/overview-

immeligfedprograms/ - _ftnref1.

This Section includes a cursory overview of labor and employment aspects of the Labor-Based

Deferred Action process. A separate practice resource is forthcoming that will specifically focus on the

labor and employment issues involved in Labor-Based Deferred Action. It will be co-authored by Jobs

with Justice, the National Employment Law Project (NELP), and the National Immigration Law Center

(NILC).

DHS Announcement, supra note 2.

DHS FAQ, supra note 3.

To be eligible for Labor-Based Deferred Action, a worker must therefore: (1) Witness or

experience a violation of labor or employment law or other labor dispute;

(2) File a complaint

with a federal, state, or local labor or employment agency or identify an existing agency

investigation related to the violation;

and (3) Obtain a Statement of Interest.

Labor and employment agency complaint and Statement of Interest request processes are

generally intended to be accessible to workers proceeding pro se. However, in practice,

assistance from experienced attorney or non-attorney advocates is often necessary to ensure a

strong complaint, thorough investigation, and successful request.

Workers centers, unions,

labor organizers, and labor and employment attorneys are often experts in this area. Immigration

practitioners are not typically involved unless they are experienced in labor and employment law

or partner with others who are. Accordingly, in most cases, immigration practitioners will

become involved in the case after the worker has requested or obtained a Statement of Interest

from the labor agency.

Department of Labor (DOL) guidance on the process for requesting DOL support for Labor-Based

Deferred Action describes workers who experience or witness violations of labor or employment law as

“workers involved in labor disputes.” U.S. Dep’t of Labor, Process for Requesting Department of Labor

Support for Requests to the Department of Homeland Security for Immigration-Related Prosecutorial

Discretion During Labor Disputes (Jul. 6, 2022),

https://www.dol.gov/sites/dolgov/files/OASP/files/Process-For-Requesting-Department-Of-Labor-

Support-FAQ.pdf [hereinafter “DOL FAQ”]. The term “labor dispute” is broadly defined as “a labor-

related dispute between the employees of a business of organization and the management or ownership of

the business or organization concerning the following employee rights: the right to be paid the minimum

legal wage, a promised or contracted wage, and overtime; the right to receive family medical leave and

employee benefits to which one is entitled; the right to have a safe workplace and to receive

compensation for work-related injuries; the right to be free from unlawful discrimination; the rights to

form, join or assist a labor organization, to participate in collective bargaining or negotiation, and to

engage in protected concerted activities for mutual aid or protection; the rights of members of labor

unions to union democracy, to unions free of financial improprieties, and to access to information

concerning employee rights and the financial activities of unions, employers, and labor relation

consultants; and the right to be free from retaliation for seeking to enforce the above rights.”

U.S. Dep’t of Homeland Sec. and U.S. Dep’t of Labor, Revised Memorandum of Understanding between

the Departments of Homeland Security and Labor Concerning Enforcement Activities at Worksites (Dec.

7, 2011), https://www.dol.gov/sites/dolgov/files/OASP/DHS-DOL-MOU_4.19.18.pdf.

Note that some labor and employment agencies allow anonymous and/or third-party complaints.

This is particularly true where workers face barriers to navigating agency processes (such as fear of

government officials in the U.S., literacy, and language).

Immigration practitioners are nonetheless encouraged to screen potential clients for labor abuses as they

may identify potential eligibility for Labor-Based Deferred Action or other types of labor-based

immigration relief. Practitioners should consider identifying labor rights organizations in their

communities where they can refer workers who need assistance reporting labor and employment law

violations and potentially requesting Statements of Interest. For further discussion of screening best

practices, see infra Section II Part C.

1. Identifying and Reporting Labor and Employment Law Violations

Generally, labor and employment agencies issue Statements of Interest only in connection with

agency investigations or enforcement efforts. If a worker has experienced or witnessed a

violation that relates to an existing agency investigation or enforcement effort, the worker does

not need to file a new complaint with the agency before requesting a Statement of Interest.

Rather, as described below in Part II Section B, the worker can simply describe how their

experience relates to the agency’s existing investigation or enforcement effort.

If a worker has

experienced or witnessed a violation that is not already the subject of an agency investigation or

enforcement effort, the worker may be able to initiate an investigation by filing their own

complaint.

While a full discussion of labor and employment law is beyond the scope of this Practice

Manual, Table 1 provides a very basic overview of some of the principal federal laws enforced

by key federal labor and employment agencies, with links to agency complaint processes.

Practitioners should be aware that coverage varies from law to law and is sometimes limited to

employers with a certain number of employees or volume of business, and/or employees with a

See U.S. Equal Employment Opportunity Commission, EEOC’s Support for Immigration-Related

Deferred Action Requests to the DHS Frequently Asked Questions, https://www.eeoc.gov/faq/eeocs-

support-immigration-related-deferred-action-requests-dhs (last visited Mar. 10, 2023) [hereinafter “EEOC

FAQ”].

Often, the best way to determine whether there is already a pending investigation is to ask the worker if

they are aware of anyone else filing a complaint about the violation. In addition, it may be helpful to

search publicly available case databases maintained by the NLRB, Nat’l Labor Relations Bd., Cases &

Decisions, https://www.nlrb.gov/cases-decisions (last visited Mar. 10, 2023), and the DOL, U.S. Dep’t of

Labor, Data Enforcement, https://enforcedata.dol.gov/views/search.php (last visited Mar. 10, 2023). For a

general guide on intake to screen for labor disputes relevant to prosecutorial discretion, see Screening for

Civil and Labor Rights Violations in Support of Prosecutorial Discretion (Aug. 5, 2021),

https://www.nelp.org/wp-content/uploads/Intake-Guide-Screening-Civil-and-Labor-Rights-Violations-in-

Support-of-Prosecutorial-Discretion-8-5-2021.pdf.

1. Witness or

Experience a

Labor Violation or

Participate in a

Labor Dispute

2. File Labor

Agency Complaint

3. Obtain Labor

Agency Statement

of Interest

4. Screening &

Counseling for

Individual

Workers Within

Scope of Labor

Agency Statement

5. File Individual

Application(s) for

Deferred Action &

Work Permit

6. File Subsequent

Requests for

Deferred Action &

Work Permit

certain amount of time worked.

State and local labor laws may provide more expansive labor

protections than federal law, and state and local labor agencies often have their own complaint

processes.

Table 1: Overview of Principal Federal Labor and Employment Laws and Enforcing Agencies

AGENCY

LAWS ENFORCED

EXAMPLES OF

VIOLATIONS

TYPICAL STATUTE

OF LIMITATIONS

COMPLAINT

PROCESS

National Labor

Relations

Board (NLRB)

National Labor

Relations Act

• Right to

unionize

• Right to

organize and

engage in

“protected

concerted activity,”

free of retaliation

An employer cuts a

worker’s hours for

talking to co-workers

about poor working

conditions.

An employer fires a

worker for

supporting the union.

6 months

https://www.nlrb.g

ov/

guidance/fillable-

forms

USDOL Wage

and Hour

Division

(WHD)

Fair Labor

Standards Act

(FLSA)

• Minimum wage

• Overtime

• Child labor

• Retaliation

Workers work over

40 hours in a

workweek but do not

receive overtime

pay.

2 years (3 years for

willful violations)

https://www.dol.g

/agencies/whd/

contact/complaints

Family Medical

Leave Act

• Unpaid, job-

protected leave for

certain family and

medical needs

A new parent is fired

for requesting 12

weeks off to care for

their newborn.

2 years (3 years for

willful violations)

https://www.dol.g

/agencies/whd/

contact/complaints

Labor standards

protections of H-2A,

H-2B, and H-1B

programs

• Wage, housing,

transportation, and

disclosure standards

An employer pays

their H-2A

agricultural workers

by piece rate, and the

resulting wage is

below the local

prevailing wage for

U.S. workers in the

same occupation.

Best to file as soon

as possible, and

within 2 years,

because of legal

ambiguity on the

statute of

limitations

https://www.dol.g

/agencies/whd/

contact/complaints

For example, the Fair Labor Standards Act (FLSA) applies only to employees who: (1) are involved in

interstate commerce; (2) work for a business that has at least two employees and does an annual business

of at least $500,000; or (3) work for hospitals or certain businesses providing medical or nursing care.

U.S. Dep’t of Labor, Fact Sheet #14: Coverage Under the Fair Labor Standards Act (July 2009),

https://www.dol.gov/agencies/whd/fact-sheets/14-flsa-coverage.

USDOL

Occupational

Safety and

Health

Administration

(OSHA)

Occupational Safety

and Health Act

• Health and

safety standards

• Whistleblower

protections

A construction

worksite fails to

provide proper fall

protection training.

An employer gives a

worker a less

favorable job

assignment because

they filed an OSHA

complaint.

6 months for health

and safety

violations

30-180 days for

whistleblower

violations,

depending on type

of violation

https://www.osha.

gov/

workers/file-

complaint

USDOL Office

of Federal

Contract

Compliance

Programs

(OFCCP)

Executive Order

11246 and other

anti-discrimination

laws and regulations

applicable to federal

contractors and

subcontractors

• Prohibiting

discrimination based

on race, color, sex,

sexual orientation,

gender identity,

religion, national

origin, or veteran

status

• Prohibiting

retaliation for

inquiring about or

disclosing

compensation

Note that OFCCP

refers complaints

alleging individual

discrimination based

on race, color,

religion, sex, or

national origin to

EEOC.

A business with

federal government

contracts fires a

worker for talking

with co-workers

about how much she

is paid.

A business with

federal government

contracts

discriminates against

workers based on

sexual orientation.

180 days for

discrimination

based on race,

color, religion, sex,

sexual orientation,

gender identity,

national origin, or

compensation

inquiries/disclosure

300 days for

discrimination

based on disability

or protected veteran

status

https://www.dol.g

ov/agencies/ofccp/

contact/file-

complaint

Equal

Employment

Opportunity

Commission

(EEOC)

Federal Anti-

Discrimination Laws

(inc. Title VII and

the ADA)

• Prohibiting

discrimination based

on race, color,

religion, sex, gender

identity, sexual

orientation, national

origin, age, or

disability

An employer uses

racial slurs, creating

a hostile work

environment.

180 or 300 days

depending on

state/locality

https://www.eeoc

.gov/

filing-charge-

discrimination

2. Obtaining a Labor or Employment Agency Statement of Interest

a) What is a Labor or Employment Agency Statement of Interest?

A labor or employment agency Statement of Interest is a written request from a federal, state, or

local labor or employment agency “asking DHS to consider exercising its discretion on behalf of

workers employed by companies identified by the agency as having labor disputes related to

laws that fall under its jurisdiction.”

Importantly, Statements of Interest generally identify a

workplace or employer, rather than specific worker(s). A Statement of Interest typically asks

DHS to use its discretion to protect workers who are or were employed at a particular worksite(s)

or by a particular employer during a time relevant to an agency investigation (and who are

therefore potential victims or witnesses). For example:

Example 1: The EEOC is investigating charges from several workers that, from

November 2021 through the present, their employer subjected them to harassment due to

their race and national origin. The EEOC issues a Statement of Interest requesting a

favorable exercise of prosecutorial discretion for workers employed by the employer at

any time from November 2021 through the present.

Example 2: DOL’s Wage and Hour Division is investigating violations of the Fair Labor

Standards Act’s minimum wage and overtime provisions by a company with worksites

throughout the state of Ohio. DOL issues a Statement of Interest requesting a favorable

exercise of prosecutorial discretion for workers employed by the company at any

worksite in Ohio over the past three years.

Example 3: The NLRB is investigating unfair labor practice charges filed by several

employees. The NLRB issues a Statement of Interest requesting a favorable exercise of

prosecutorial discretion for workers employed by the employer from January 2021

through the present, the time-period during which the employer allegedly engaged in the

unlawful practices.

See DHS Announcement, supra note 2.

Redacted Statements of Interest from each federal labor agency are available by request only in

Appendix 4.

Practitioners should note that Labor-Based Deferred Action does not currently provide any

means for family members to receive deferred action as derivatives of the principal beneficiary.

In the vast majority of cases so far, Statements of Interest covered only workers, not family

members.

b) How to Obtain a Statement of Interest

Labor and employment agency processes to request Statements of Interest vary.

To request a Statement of Interest from the NLRB, workers or their advocates or representatives

should send a written request to the Board Agent assigned to their case, the Regional Director,

and the Immigration Coordinator (if known).

To request a Statement of Interest from the U.S. DOL (including the Wage and Hour Division,

the Occupational Safety and Health Administration, and the Office of Federal Contract

Compliance Programs), workers or their advocates or representatives should send an email to

state[email protected] describing: (1) “the labor dispute and how it is related to the laws

enforced by DOL;” (2) related retaliation the workers witnessed or experienced, if any; and (3)

how the chilling effect of potential immigration consequences may deter workers from reporting

violations or otherwise cooperating with DOL. Note that while workers should include

information about retaliation where applicable, there is no requirement that worker have

witnessed or experienced retaliation in order to qualify for a Statement of Interest. DOL’s

Frequently Asked Questions provides further details and requirements.

To request a Statement of Interest from the EEOC, workers or their advocates or representatives

should contact the District Director and Regional Attorney at their local EEOC Field Office.

Requests should: (1) “[I]dentify the workplace involved in the relevant EEOC investigation or

litigation;” (2) provide “information about retaliation, whether immigration-related or otherwise,

or fear of such retaliation, that is likely to deter employees from reporting to the EEOC or

The only exception was in a case involving deceased workers whose family members were potential

witnesses in the agency investigation. There is a strong argument that labor and employment agencies

should issue Statements of Interest covering workers’ family members whenever needed for workers to

feel safe reporting violations, participating in agency investigations, or otherwise exercising their labor

rights. The DOL appears to acknowledge this by recognizing that “undocumented workers who

experience labor law violations may fear that cooperating with an investigation will result in the

disclosure of their immigration status or that of family members, or that it will result in immigration-based

retaliation from their employers and adverse immigration consequences for themselves or their family.”

DOL FAQ, supra note 18 (emphasis added).

See Jennifer A. Abruzzo, Gen. Counsel, Nat’l Labor Relations Bd., Ensuring Rights and Remedies for

Immigrant Workers under the NLRA, Memo 22-01, (Nov. 8, 2021),

https://apps.nlrb.gov/link/document.aspx/09031d45835cbb0c; Joan Sullivan, Assoc. Gen. Counsel, Nat’l

Labor Relations Bd., Ensuring Safe and Dignified Access for Immigrant Workers to NLRB Processes,

OM 22-09 (May 2, 2022), https://apps.nlrb.gov/link/document.aspx/09031d458375a553.

See DOL FAQ, supra note 18.

participating in its investigations or litigation;” and (3) include the Requestor’s contact

information.

The EEOC’s Frequently Asked Questions provide further details and

requirements.

A template Statement of Interest request is included in Appendix 2. Note that the request need

not name specific workers and should not disclose any worker’s immigration status or contain

sensitive personally identifiable information. The request should, however, frame the time period

relevant to the labor or employment law violation, worksite(s), and employer(s) as broadly as

possible to cover all current and former employees who could potentially be victims of, or

witnesses to, the violation. Specifically, the request should list all relevant employers (including

any possible joint employers and subcontractors), all relevant worksites, and the relevant time

period (including the earliest date of evidence of a labor violation through the filing of the

agency complaint and anticipated further proceedings, including compliance and monitoring).

These details will define the scope of workers who are eligible to file for Labor-Based Deferred

Action, and so the request is a key opportunity to ask for the class of affected workers to be as

broad as possible. If the agency may be inclined to limit the scope of the Statement of Interest in

any way that might exclude potential witnesses, the request should explicitly address why the

Statement of Interest should be broad to prevent or counteract retaliation and facilitate the

participation of all potential witnesses.

As of the publication of this Practice Manual, no state and or local labor or employment agency

has yet published guidance for seeking a Statement of Interest. The absence of published

guidance does not mean an agency will not issue a Statement of Interest. In fact, a number of

state labor agencies have already issued Statements of Interest. A worker seeking a Statement of

Interest from a labor or employment agency without published guidance should contact the

agency to ask how it wishes to receive Statement of Interest requests. They may also wish to put

the agency in touch with DHS. DHS has indicated that labor and employment agencies seeking

more information about Statements of Interest and Labor-Based Deferred Action may contact

laborenforceme[email protected].

When a labor or employment agency decides to issue a Statement of Interest, it will submit the

Statement to DHS and allow DHS up to three days to review before distributing to the

requestor.

If the labor or employment agency decides not to issue a Statement of Interest, then

the agency should not communicate with DHS about that request.

c) A Note on Worker Organizing and Information Sharing

Practitioners representing workers applying for Labor-Based Deferred Action should be aware

that workers may have invested (or be prepared to invest) significant effort and courage,

potentially as part of collective organizing efforts, in coming forward to report labor and

employment law violations. Particularly where Statements of Interest cover many workers,

practitioners may be asked to coordinate with unions, workers centers, and other advocates and

See EEOC FAQ, supra note 22, at Q5.

Id.

DHS FAQ, supra note 3.

See DOL FAQ, supra note 18, at Q11; EEOC FAQ supra note 22, at Q7.

organizers in assisting workers applying for Labor-Based Deferred Action. Practitioners are

encouraged to see Labor-Based Deferred Action as an opportunity not only to assist individual

workers, but also to contribute to a larger effort, decades in the making, to build power for

immigrant workers, including via the powerful DALE campaign.

Labor and employment

attorneys, non-attorney advocates, and organizers may be instrumental in the labor agency

process and can serve as important resources for the immigration practitioner. Workers may have

longstanding relationships of trust with these advocates and may seek their support in making

significant decisions and navigating the process of seeking Labor-Based Deferred Action.

Because of these considerations, practitioners should discuss with each worker their preferences

for sharing information with other advocates working on the matter, making sure to explain all

relevant confidentiality considerations, and respect the worker’s preferences.

C. Screening & Counseling for Labor-Based Deferred Action

Once a Statement of Interest has been, or is likely to be, issued, the next step is for an

immigration practitioner to conduct a thorough screening.

1. Immigration Screening Interview

As with any other client seeking an immigration benefit, it is critical to individually assess the

worker’s complete history to evaluate their eligibility for Labor-Based Deferred Action and other

forms of immigration relief, and to consider the prospects of success as well as any risks in

applying. Workers may have questions about deferred action or other immigration paths and they

should have the opportunity to receive counseling tailored to their case.

Through the intake, practitioners should assess:

1) whether the noncitizen falls within the scope of the Labor Agency Statement of

Interest (i.e., whether the worker worked at the covered worksite(s) and/or for the

covered employer(s) during the covered time period);

2) complete immigration history, as relevant to equities for discretion, and whether

USCIS or ICE would have jurisdiction to adjudicate deferred action;

3) criminal history, as relevant to equities for discretion;

4) biographic information and family ties; and

5) ability to pay the Employment Authorization application fee or eligibility for a fee

waiver.

Although a standard immigration intake form, such as the example provided by ILRC, will

generally suffice,

a form tailored to this Labor-Based Deferred Action process is available in

Appendix 3, which aims to gather all the information needed to fill out the forms required for

this process (including a fee waiver, if needed). As detailed in the chart below, the information

See Nat’l Day Laborer Organizing Network, DALE: Desde Abajo Labor Enforcement,

https://ndlon.org/dale-campaign/ (last visited Mar. 10, 2023).

Immig. Legal Res. Ctr., Sample Client Intake Form,

https://www.ilrc.org/sites/default/files/resources/ilrc_sample_intake_form_-_sept_2019_0.pdf (last

updated Sep. 2019).

gathered in the interview (especially with regard to criminal or immigration history) can inform

whether the practitioner will advise the client to file record requests before proceeding to apply

for deferred action. These are the key areas where practitioners should screen workers in order to

advise on Labor-Based Deferred Action eligibility, flag any issues that may complicate the case

or pose risks, and identify other potential forms of relief (each of which is discussed in greater

detail in subsequent sections).

Table 2: Immigration Screening Criteria for Labor-Based Deferred Action

ISSUE

RELEVANCE TO THIS PROCESS

CONSIDERATIONS FOR

COUNSELING & CASE STRATEGY

Immigration

History

• The new guidance states that in cases

where workers are in removal proceedings

or have prior orders of removal, USCIS

will “forward” their applications to ICE for

review. It is not yet known if the ICE

forwarding processing will cause delays in

adjudication.

• As a discretionary form of relief, USCIS

may deny deferred action based on

negative immigration history. Therefore,

negative history may require additional

evidence of positive equities to support the

worker’s application. See infra Part II

Section E.1.

• Advocates should consider filing a FOIA

for prior immigration records, or FBI/State

background check to adequately assess risk.

• Advocates should advise client about

information being shared with ICE if

application will be forwarded to ICE for

review.

• Advocates should counsel clients about

risks of applying and need for positive

equities evidence if there is substantial

negative immigration history (including

multiple removals or re-entries, or prior

denials of affirmative applications). Workers

in removal proceedings or with prior removal

orders may need to separately request

prosecutorial discretion from OPLA to

terminate (or reopen and terminate

proceedings).

Criminal

History

• Although there is no specific criminal

bar to applying for Labor-Based Deferred

Action, criminal history that is undisclosed

in the initial request may result in a

Request for Evidence (RFE). The

immigration agencies may also request

additional records for even disclosed

history through RFEs.

• As a discretionary form of relief, USCIS

may deny deferred action based on

negative criminal history. Therefore,

negative history may require additional

evidence of positive equities to support the

worker’s application and should prompt

practitioners to engage in a thorough

assessment of application risks. See infra

Part II Section E.1.

• Advocates should request records from the

jurisdiction of conviction and/or a state or

FBI background check.

• Advocates should advise workers,

depending on their individual criminal

history, about the possibility of a denial, as

well as whether they are generally

removable—apart from this application—

because of their criminal history.

• Advocates should affirmatively submit

criminal dispositions with additional

evidence of positive equities.

Other

Immigration

Relief

• Workers should receive a full

immigration screening, both to determine

• Workers can apply for both Labor-Based

Deferred Action and U/T visa, either at the

U/T visa eligibility arising from the labor

dispute,

as well as any other forms of

immigration relief that may provide a

viable path to permanent status.

• Workers who have qualifying U.S.

citizen relatives (or are Cuban nationals)

may wish to apply for parole in place to be

eligible to adjust status if the worker

previously entered without inspection. See

infra Part IV Section B for a discussion of

applying for parole in place in labor cases.

same time or in sequence. Practitioners

should advise workers on other potential

benefits stemming from these visa programs,

such as Continued Presence (for victims of

trafficking) and Bona Fide Determination/4-

year Deferred Action status for U visa

applicants. See infra Part IV, Section D.

• The new guidance offers no specific

process for applying for parole in place in

labor cases. Consequently, parole in place

applications will be filed at local USCIS field

offices and may be subject to existing

backlogs and/or to additional filing

requirements and fees. See infra Part IV

Section B. Thus, advocates should advise

workers of the greater uncertainty of filing

for parole in place.

2. Understanding Immigration and Criminal History—FOIAs & Other Record Requests

Depending on what a worker discloses in their screening interview, practitioners should submit

FOIA or other record requests to various government agencies to review any negative

immigration and criminal history. Depending on the agency or sub-agency, responses to these

record requests vary from 30 days to many months. FOIA requests to USCIS’s National Records

Center for the A File currently have short processing times, and the A File should generally

contain most relevant immigration history. Practitioners should weigh the potential delay as well

as potential uncertainty of any negative immigration or criminal history based on what worker

discloses during the screening interview and then discuss any risks with the worker so they can

make an informed decision to either proceed with filing or wait for records. Table 3 below offers

guidance on when to request certain records and what to expect to receive from each agency.

See infra Part IV Section D.

For detailed instructions how to file FOIA requests to DHS sub-agencies, see Immig. Legal Res. Ctr., A

Step-by-Step Guide to Completing FOIA Requests with DHS (Dec. 2021),

https://www.ilrc.org/sites/default/files/resources/new_foia_dhs_practice_advisory_-_2021.pdf.

Table 3: Records Requests

RECORDS

TYPE

AGENCY

CONSIDER FILING IF…

RESULTS

Immigration

History

USCIS

… worker reports any prior immigration

history that suggests they may have a

removal order, even if they never went to

court, and/or interaction with border

officials.

This request should provide

the worker’s “A-File”

containing some but not all

records of immigration

history. A-File requests are

currently processed in

approximately 30 business

days if filed online.

CBP

… worker reports any interactions with

border agents, “border police,” etc. as

they entered the U.S. that may have

resulted in a removal order including

“turn backs” and/or voluntary returns.

This request should reveal

any border arrests, border

interrogations, entries/exits,

and expedited orders of

removal issued by Customs

& Border Protection.

EOIR

… worker reports receiving a Notice to

Appear in immigration and/or appearing

before immigration court. If the client

was detained at the border and released

with paperwork, they may have a

removal or deportation proceeding

before immigration court.

This file should contain all

records from removal

proceedings in immigration

court.

If the client does not have an A-number, be sure to include all spellings and versions (including past

misspellings) of a worker’s name to better ensure all their records are located in requests to immigration

agencies.

For more information on FOIA requests for A-files, see Nat’l Immig. Litig. All., Am. Immig. Council,

Nw. Immig. Rts. Project, and Law Offs. of Stacy Tolchin, Nightingale v. USCIS and FOIA Requests for

Immigration Case Files (A-Files) (Jan. 18, 2023),

https://www.americanimmigrationcouncil.org/sites/default/files/practice_advisory/nightingale_foia_advis

ory_updated.pdf.

Practitioners can also file a FOIA request to OBIM in conjunction with a request to CBP. OBIM

requests will return records of any biometrics taken pursuant to a border arrest. See ILRC guide, supra

note 36.

Practitioners should probe whether the worker ever received a 9-digit A-number. Many individuals are

not aware they received one but may have paperwork from being processed at the border or a Notice to

Appear—either of which will include the A-number. With an A-numbuther, practitioners can easily use

EOIR’s online case portal to confirm whether the worker is in removal proceedings or has a final order of

removal (including in absentia order, but not expedited removal orders). A-Numbers may be searched on

Executive Office of Immigration Review (EOIR), Automated Case Information,

https://acis.eoir.justice.gov/en/ (last visited Mar. 10, 2023).

Criminal

History

FBI

Background

Check

… worker reports arrest(s) or

conviction(s), federal charges, and/or

does not know the jurisdiction of

conviction to request them directly.

Practitioners should inquire about

various scenarios including traffic stops,

being handcuffed, or taken to a police

station, and/or appearing before a judge.

This report should include

state and federal arrests and

convictions, including

border arrests (though is

often incomplete). This

requires submitting

fingerprints in addition to a

form, which can be filed

online and are typically

processed faster than

FOIAs. FBI reports also

frequently contain

information on border

arrests.

State/County

Records

… worker reports prior criminal history

and knows the local jurisdiction where

the arrest or conviction occurred,

including traffic violations.

These records should

include arrest and court

records including final

dispositions.

3. Counseling

a) Benefits of Approval, Prospects of Success, and Limitations of

Temporary Status

Practitioners should review with workers the benefits of deferred action, including work

authorization, a Social Security number, access to apply for state identification or a driver’s

license, and the tolling of unlawful presence, as described in more detail above, see Part II

Section A.

Practitioners should also note that, although DHS should show deference to the labor agency’s

enforcement interest and statement of interest in the case, the agency will still use its discretion

to balance individual positive and negative equities. Accordingly, workers with significant

negative immigration or criminal history may receive requests for more evidence, or even denial,

even with the significant positive equity of their involvement in the labor dispute. In some of the

early cases—processed in various USCIS Field Offices without the benefit of trained, specialized

adjudicators—workers with some negative criminal or immigration history were approved for

deferred action. Practitioners should assess and advise each client based on the equities of their

individual case.

Fed. Bureau of Investigations, FBI: How Can We Help You, Identity history Summary Checks,

https://www.fbi.gov/how-we-can-help-you/more-fbi-services-and-information/identity-history-summary-

checks (last visited Mar. 10, 2023).

Every state has a law that mirrors FOIA, often referred to as Public or Open Records Requests or other

names. If the county of conviction is known, there may be an online system to request criminal records.

Practitioners may want to consult local criminal defense attorneys or public defender’s officers, where

they exist, for help in quickly locating state or country criminal records and deciphering them.

b) Sharing Information and Possible Future Immigration Enforcement

Practitioners should counsel each individual client on the risks of providing their personal

information to DHS through an application for Labor-Based Deferred Action according to the

specific facts of their case.

DHS has not made any formal guarantee that information in an application for Labor-Based

Deferred Action will not be used against a worker in a future proceeding or action. However,

current USCIS Guidance on the Referral of Cases and Issuance of Notices to Appear provides

that USCIS will refer denied cases to ICE for the purpose of initiating removal proceedings only

under limited circumstances, including in cases involving substantiated fraud, “egregious public

safety” cases involving arrests or convictions for certain enumerated offenses, or national

security cases.

It is important to be familiar with this guidance in order to advise workers

whether they are currently at risk of being referred for removal if their applications are denied. It

is also important to note, however, that agency guidance could change, especially in the event of

an administration that harbors an anti-immigrant sentiment.

Practitioners should advise workers who are in removal proceedings or have final removal orders

that their applications will be adjudicated by ICE, rather than USCIS, which may entail different

risks. USCIS has provided a centralized filing location, regardless of workers’ current

immigration status. However, where USCIS determines that an applicant is in removal

proceedings or has a final removal order, USCIS will “forward” the request to ICE for

adjudication.

It is our understanding that Homeland Security Investigation’s Parole and Law

Enforcement Programs Unit (HSI PLEPU) unit will adjudicate these cases, in consultation with

the relevant ERO and OPLA offices. Practitioners should consider whether ICE already has

access to a worker’s current address and personal information in assessing the risk of providing

that information via a Labor-Based Deferred Action Application. Practitioners should explain the

involvement of ICE and its subagencies in these cases so that clients can make an informed

decision to proceed or not in submitting an application. Practitioners should also note that it is

unclear what legal standard ICE will apply in determining whether to pursue enforcement against

those who are denied deferred action.

Policy Memorandum, U.S. Citizenship & Immig. Servs, Revised Guidance for the Referral of Cases

and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens, PM-

602-0050 (Nov. 7, 2011),

https://www.uscis.gov/sites/default/files/document/memos/NTA%20PM%20%28Approved%20as%20fin

al%2011-7-11%29.pdf.

See DHS FAQ, supra note 3 (“USCIS and ICE, as appropriate, will consider and make a case-by-case

determination of the deferred action request and USCIS will consider all related Forms I-765, if

submitted.”).

Because the September 30, 2021 Mayorkas general priorities memo remains under litigation, see

Appendix 1, individual ICE officials currently have wide discretion in enforcement decisions. DHS

officials have attempted to reassure that ICE officials should make decisions “in a way that best protects

against the greatest threats to the homeland.” Ellen M. Gillmer, Immigrant Arrests Targets Left to

Officers With Biden Memo Nixed, BLOOMBERG LAW (Jul. 26, 2022),

https://news.bloomberglaw.com/immigration/immigrant-arrest-targets-left-to-officers-with-biden-memo-

nixed.

c) Fears of Employer Retaliation

Neither USCIS nor ICE will contact an applicant’s employer when adjudicating an application

for Labor-Based Deferred Action. If an employer learns that a worker is seeking immigration

protection from another source, such as from another worker or a news article discussing the

case, it is unlikely that the employer will be able to gain access to the Labor-Based Deferred

Action application via a FOIA request.

Some labor rights advocates have expressed concern that an employer could use a worker’s

request for immigration relief against them if there is litigation of their labor case, such as when

the employer contests the labor agency’s fines and/or if worker files a private civil action against

the employer. For example, an employer may try to intimidate a worker by seeking aggressive

discovery into their requests for immigration relief or, in the rare cases that proceed to

depositions or trial, an employer may try to cast doubt on a worker’s testimony by suggesting the

worker is exaggerating or fabricating labor law violations to obtain immigration relief. In either

situation, there are potentially effective strategies to respond, including using standard strategies

to rehabilitate witness credibility, seeking a protective order against immigration-related

discovery, or filing motions in limine to exclude such evidence at trial.

Strategies will vary

depending on the type of case being investigated or litigated, and the role of the labor agency

involved. However, these strategies are not foolproof. In particular, the availability of protective

orders may vary across different jurisdictions, and employers may serve broad discovery

requests that encompass workers’ request for immigration relief even if employers were not

previously aware workers made such requests. Accordingly, in an abundance of caution,

practitioners should advise workers about the possibility their employer may try to obtain

information about their request for immigration relief and/or use that request to discredit them in

their labor case. Practitioners may also want to advise workers that keeping their requests for

immigration relief confidential will decrease the likelihood their employer will raise these

arguments in litigation, so that workers may make an informed decision about whether and with

whom to share the fact that they have applied for Labor-Based Deferred Action.

d) Fears of Criminal Consequences of Applying

Immigration practitioners should note that a range of state and federal laws prohibit the use of—

and sometimes specifically working under—false names or Social Security numbers, and that

negative immigration consequences could accrue from this practice.

Although disclosing “other

USCIS generally does not release records to third parties absent the subject’s consent unless the

requestor can show “there is no privacy interest in the records, or . . . there is a public interest in the

records that outweighs the subject’s privacy interests.” U.S. Citizenship & Immig. Servs., Form G-639,

Freedom of Information/Privacy Act Request, 8 (Nov. 3, 2022),

https://www.uscis.gov/sites/default/files/document/forms/g-639.pdf. Applications for Labor-Based

Deferred Action may also be exempt from disclosure under FOIA Exemption 7.

See, e.g., Rivera v. Nibco, Inc., 364 F.3d 1057 (9th Cir. 2004).

It is a federal felony to use a false Social Security Number with the intent to deceive and obtain

something of value. See 42 U.S.C. 408(a)(7)(B). There is a circuit split on the immigration consequences

of this crime. Compare Munoz-Rivera v. Wilkinson, 986 F.3d 587 (5th Cir. 2021) (holding that conviction

for using a false SSN is a crime involving moral turpitude because it involves dishonesty) with Beltran-

names used” on immigration forms does not itself carry immigration or criminal consequences,

where possible applicants should seek to establish proof of employment during the period of the

labor dispute without using evidence that could expose them to criminal liability or immigration

consequences.

e) Counseling Clients on Paying Work Authorization Application Fee or

Seeking a Fee Waiver

There is no cost to request deferred action. However, the streamlined process for applying for

Labor-Based Deferred Action requires that workers simultaneously apply for employment

authorization. These streamlined applications must be accompanied by the appropriate fee for the

I-765 application or a fee waiver, Form I-912.

Without a fee waiver, the application costs $410

as of this writing.

The form to request a fee waiver is lengthy, and advocates report that USCIS

is generally exercising increased scrutiny of fee waiver applications. To be successful, an

applicant will often need to submit significant accompanying documentation, depending on the

grounds for their eligibility. While applicants who receive a means-tested benefit can generally

just submit proof of their eligibility, applicants seeking waiver of fees on the ground that their

income is at or below 150 percent of the Federal Poverty Guidelines will generally be expected

to produce tax returns, paystubs, and/or other documentation of their low income. As discussed

in the preceding section, practitioners should not submit evidence that could expose applicants to

criminal liability or immigration consequences (such as a paystub showing the use of a fake

Social Security number that could constitute identity fraud). Practitioners should counsel the

noncitizen on the time to fill out the fee waiver application and the expected supporting

documentation, as some applicants may choose to pay the application fee rather than delay filing

their application and still risk possible denial of the fee waiver, resulting in rejection and return

of the underlying application.

D. Preparing a Labor-Based Deferred Action Application

Once a worker who falls within the scope of an agency Statement of Interest has decided that

they would like to proceed with applying for Labor-Based Deferred Action, the practitioner can

assemble the full application packet. This section describes the components of the application

packet, including both the forms and evidence, in general. Specific strategies to address

significant negative equities are addressed in more detail in Part II Section E.1.

Tirado v. I.N.S., 213 F.3d 1179 (9th Cir. 2000) (holding that conviction under 42 U.S.C. 408(a)(7)(B) is

not a crime involving moral turpitude because legislative history of Section 408 shows Congress did not

believe using a false Social Security number to work constituted moral turpitude).

U.S. Citizenship & Immig. Servs., Form I-912, Instructions for Request for Fee Waiver (Sept. 3, 2021),

https://www.uscis.gov/sites/default/files/document/forms/i-912instr.pdf.

U.S. Citizenship & Immig. Servs., Form I-765, Application for Employment Authorization,

https://www.uscis.gov/i-765.

If the need to apply for work authorization is caused by an underlying labor violation, then the labor

agency (specifically the NLRB) may seek reimbursement of the filing fee from the employer through the

labor agency adjudication as part of a consequential damages award. Even in compelling cases that the

NLRB is pursuing zealously, that reimbursement will likely take months or years.

Practitioners preparing these cases should remember that the Statement of Interest is a significant

positive equity for the worker that speaks to the enforcement interests of a sister government

agency that is enforcing labor and employment law under its statutory mandate.

Therefore, in

uncomplicated cases, additional positive equities are not necessarily required. Practitioners

should also keep in mind that deferred action does not require a specific finding of substantial

abuse, as for U nonimmigrant status, nor does it require a finding of extreme hardship, as for T

nonimmigrant status or cancellation of removal. Finally, practitioners should consider that while

adjudicators for these applications have received some specialized training, they are still

immigration adjudicators who do not have the same expertise as labor agency officials in labor

and employment law. Therefore, practitioners should describe the labor agency proceeding in

accessible language, with reference to the Statement of Interest, but should refrain from either

briefing the merits or severity of the labor violation, a factor which is not at issue before the

adjudicator, or submitting voluminous labor agency records that will be difficult for an

immigration adjudicator to decipher. Rather, practitioners should argue and present evidence that

shows that the worker falls within the scope of the Statement of Interest.

In early Labor-Based Deferred Action cases—processed in various USCIS Field Offices that did

not have the benefit of trained, specialized adjudicators—many workers with uncomplicated

cases were approved without a declaration from the worker, without community support letters,

and without evidence documenting individual harm or hardship from the labor violation.

1. Contents of Deferred Action and Employment Authorization Packet

The newly announced guidance includes a short list of requirements for a request for Labor-

Based Deferred Action and work authorization. In addition to these components, practitioners

should prepare a short cover letter, see Appendix 5, available by request only. The letter should

generally be under five pages. In the letter, practitioners should address which sub-agency

(USCIS or ICE) should adjudicate the case, with a brief discussion of relevant immigration

history or lack thereof (including entries and exits). Practitioners should also briefly demonstrate

that the worker falls within the scope of the Statement of Interest and highlight the labor

agency’s interest in the case, citing to the Statement. Practitioners should then address the

compelling government interest served by granting the request, with emphasis on the labor

agency interest as well as a short discussion of any relevant individual equities. Finally, if

practitioners are requesting the application be expedited or a fee waiver, the letter should address

the USCIS Expedite Criteria, see Part II Section D, or fee waiver criteria.

See Alejandro N. Mayorkas, Sec’y, U.S. Dep’t of Homeland Sec., Worksite Enforcement: The Strategy

to Protect the American Labor Market, the Conditions of the American Worksite, and the Dignity of the

Individual (Oct. 12, 2021),

https://www.dhs.gov/sites/default/files/publications/memo_from_secretary_mayorkas_on_worksite_enfor

cement.pdf (directing DHS component agencies, in considering case-by-case requests for deferred

actions, that “the legitimate enforcement interests of a federal government agency should be weighed

against any derogatory information to determine whether a favorable exercise of discretion is merited).

Before the centralized adjudication of these applications, there was some regional variation in

adjudication, with a few USCIS Field Offices issuing RFEs for significant evidence beyond the short list

of components in the new DHS guidance.

Table 4: Contents of Labor-Based Deferred Action and Employment Authorization Packet

REQUIREMENT

SUGGESTED EVIDENCE

OR ATTACHMENTS (see

sample exhibits in cover

letter in Appendix 5,

available by request only)

ADDITIONAL NOTES

Form G-28 (if represented)

None.

The applicant must physically sign

this and all immigration forms, and

electronic signatures (such as

through Adobe PDF) are not

accepted. USCIS continues to

accept photocopies or scans of

signatures.

Form G-325A: Biographic

Information (for Deferred

Action)

None.

Applicants should fill out all fields

with accurate information, including

disclosing any “other names used”

as well as their residences for the

past five years. Because this form

specifically requests residence

addresses, practitioners should not

substitute an office mailing address

for the client residence address.

Form I-765, Application for

Employment Authorization

None. While the form

instructions list passport-size

photos as supporting evidence,

no passport-size photos are

required for submissions to

Montclair because photos will

be taken at the biometrics

appointment.

See additional notes for G-325A.

In Part 2, Item 27, the Eligibility

Category is (c)(14) for noncitizen

granted deferred action.

Form I-765WS, Worksheet

None.

Form I-765WS is submitted as part

of DACA applications and in that

context, work authorization has

been routinely approved without

additional documentary evidence in

support of the noncitizen’s

statement in this worksheet.

$410 Fee

or Form I-912

For fee, money order, personal

check, cashier’s check, or Form

G-1450 to pay by credit card.

If submitting fee waiver, then

submit evidence in support of

the reason for which the

See Policy Manual, U.S. Citizenship & Immig. Servs., Volume 1, Part B, Chapter 2: Signatures,

https://www.uscis.gov/policy-manual/volume-1-part-b-chapter-2 (last visited Mar. 10, 2023).

This is the current filing fee for the I-765. Practitioners can confirm the current filing fee for form I-765

on the USCIS website. See U.S. Citizenship & Immig. Servs., Filing Fees,

https://www.uscis.gov/forms/filing-fees (last visited Mar. 10, 2023).

noncitizen seeks to waive the

fee (proof of receiving means-

tested benefit, proof of income

such as tax returns or W-2s, or

proof of financial hardship such

as medical bills and

outstanding debt).

A written request signed by the

noncitizen stating the basis for

the deferred action

Cover letter requesting deferred

action signed by applicant (see

example in Appendix 5,

available by request only).

Short separate statement signed

by the applicant submitted as

an exhibit (see example in

Appendix 6, available by

request only).

Some advocates have satisfied this

requirement by asking the applicant

to sign the cover letter. Others have

preferred to have the applicant

submit a separate short statement

(relating their assent to the

practitioner’s filing of the

application to seek immigration

protection) that is attached as an

exhibit, to allow the advocate to

make last minute revisions to the

cover letter. Note that the written

request must be signed but does not

need to be sworn to under penalty

of perjury.

Statement of Interest from a

labor or employment agency

supporting the request

Statement of Interest from

labor or employment agency

requesting prosecutorial

discretion for workers in a

workplace during the time

period of the labor dispute.

This letter should serve as evidence

for establishing the labor agency’s

interest in the case. We suggest that

you do not submit voluminous

documents from the labor agency

proceeding, because USCIS is not

expert in determining if a labor

violation has occurred and should

be deferring to the labor agency’s

articulation of its enforcement

interests. It is also not necessary to

demonstrate individual harm or

hardship from the labor violation,

and so medical records or an

individual declaration are not

needed. Practitioners may include,

however, a docket sheet from the

case establishing that the case is

pending.

For more on this, see Am. Immig. Lawyers Assoc., Practice Pointer: Best Practices for Preparing and

Filing Form I-912, Request for Fee Waiver (Oct. 26, 2021), https://www.aila.org/advo-media/aila-

practice-pointers-and-alerts/practice-pointer-best-practices-preparing-filing.

Evidence to establish the

worker falls within the scope

of the Statement of Interest

Typically, this means proof of

employment during time period

of the labor dispute mentioned

in the letter, such as:

• W-2s

• Pay stubs

• Timecards

• Contracts or other

documentary evidence

• Labor agency records

that list affected

workers

• Short declaration

describing employment

terms (dates, position,

work site) (see example

at Appendix 6,

available by request

only)

Note that the standard for this

requirement is whether the worker

falls within the scope identified in

the Statement of Interest, and the

individual worker does not need to

demonstrate that they individually

suffered the labor violation nor that

they have offered any specific form

of assistance to the labor agency.

Workers can receive Labor-Based

Deferred Action protection before

they are interviewed by the labor

agency.

We recommend submitting

evidence that clearly establishes that

the applicant was working for the

named employer during the labor

dispute, without exposing the

applicant to any other risks. For

example, practitioners could prepare

a short declaration describing the

terms of employment or submit

evidence of communication with the

labor agency to avoid disclosing

employment documents that use a

pseudonym.

Evidence of any additional

factors supporting a favorable

exercise of discretion.

Proof of participation in the

labor and employment dispute

or agency proceedings

• Communications with

the labor agency

offering assistance

from worker by name

• Short agency records

with the worker’s name

(for example, agency

complaint, receipt of

complaint, settlement

agreement, or

administrative or

judicial order)

• Other evidence of

cooperation (worker

affidavit, list of

Because the streamlined deferred

action process is designed to protect

potential witnesses even in early

stages of the labor agency’s

investigation, individual workers

applying for initial deferred action

are not required to prove any

specific helpfulness. However,

where the worker actively

participated in the labor dispute

(organizing) or in the agency

proceedings (filing the complaint,

being interviewed, providing

evidence, testifying, etc.), this will

be a compelling positive equity.

Practitioners should emphasize how

the worker has supported or is

supporting the agency’s

enforcement efforts in general terms

This positive equity may continue to be relevant beyond the initial application. For instance,

participation may be relevant in subsequent requests for deferred action or in the event of an encounter

like a criminal arrest where there is a risk that DHS may terminate the deferred action in their discretion.

witnesses including the

worker’s name, etc.)

that are accessible to an

immigration adjudicator that likely

lacks familiarity with labor agency-

specific processes.

Records of criminal

dispositions

Since deferred action is highly

discretionary, USCIS will want to

review any criminal history. It is

important to disclose all criminal

history to appropriately frame the

incidents, knowing that the

incidents will likely appear as a

result of the biometrics appointment

and background check. As in other

USCIS cases, it is best practice to

submit a certified record of

disposition for a criminal case

without submitting additional

documents like the police report

that may contain damaging and

unproven allegations.

Other equities evidence

• Birth certificates or

other proof of status for

any U.S. citizen

children or spouse that

demonstrate ties.

Other equities evidence like letters

from community, political, or faith

leaders and medical records are not

likely needed unless there are

significant negative equities like

criminal history or immigration

history (beyond a single entry

without inspection).

Proof of identity and

nationality

• Biographical page of a valid

passport, if available

• Birth certificate and

translation, if available

• Other validly issued

identification document

If applicable, any document

used to lawfully enter the U.S.

or other evidence relating to

• I-94 and visa or travel

document if the applicant was

inspected and admitted

If the noncitizen has never

encountered immigration officials,

the noncitizen’s immigration

history or status.

• Notice to Appear or other

documents from immigration

court, if in removal

proceedings

• Any removal order

(expedited removal order,

administrative removal order,

final removal order, reinstated

removal order)

then there is no need to include

documentation.

2. Jurisdiction Over the Deferred Action Application—USCIS vs. ICE

The new guidance states, “USCIS will only forward to U.S. Immigration and Customs

Enforcement (ICE) requests for deferred action that are submitted by noncitizens who are in

removal proceedings or have a final order of removal. USCIS and ICE, as appropriate, will

consider and make a case-by-case determination of the deferred action request and USCIS will

consider all related Forms I-765, if submitted.”

Accordingly, applicants in removal proceedings before the Executive Office of Immigration

Review (EOIR) and with final orders of removal

will still file applications for deferred action

at USCIS’s “central intake point” in Montclair, CA. However, their applications will then be

“forwarded” to ICE for adjudication. We understand that applications forwarded to ICE will be

adjudicated by HSI’s Parole and Law Enforcement Programs Unit, which will consult with the

relevant ERO and OPLA offices and render a decision. If ICE approves deferred action, then the

USCIS adjudicators in Montclair will then consider the I-765 application for employment

authorization. The grant of deferred action by ICE will not affect ongoing removal proceedings

absent a separate request for prosecutorial discretion to OPLA.

As of this writing, the authors are not aware of any Labor-Based Deferred Action applications

that have been referred to this unit or adjudicated, so it is difficult to know if ICE will scrutinize

applications more or expect more evidence of positive equities. Practitioners may also be

concerned that applications referred to ICE could result in workers being placed in an ongoing

monitoring program (particularly for workers with in absentia orders or older orders of removal

who are not currently reporting to ICE).

That outcome seems less likely because the ICE

DHS FAQ, supra note 3.

At this time, it is our understanding that cases with both executed and unexecuted orders of removal

(meaning, respectively, individuals who were deported under a prior order and those who received an

order who remained in the United States) will be forwarded to ICE for adjudication.

The use of surveillance technology and programs such as Intensive Supervision Appearance Program

(ISAP) and Alternatives to Detention (ATD)—which often involve use of ankle monitors, phone apps

with GPS tracking, and various forms of routine reporting to ICE or private contractors—have increased

dramatically over the last decade. See Just Futures Law & Mijente, ICE Digital Prisons: The Expansion

of Mass Surveillance as ICE’s Alternative to Detention (May 2021),

https://www.flipsnack.com/justfutures/ice-digital-prisons-1u8w3fnd1j/print-pdf.html; Factsheet, Am.

Immig. Council, Alternatives to Detention: An Overview (Mar. 2022),

adjudicators are within the HSI Parole Unit, but is still possible given the potential involvement

of ERO field offices. The authors will be tracking cases referred to ICE to update this advisory

with more information when it is available.

Practitioners should note that ICE approval of a request for Labor-Based Deferred Action will

not have any automatic effect on ongoing removal proceedings or an outstanding final order of

removal. Separate from this streamlined deferred action process, practitioners with clients in

proceedings or with a final order of removal should consider seeking prosecutorial discretion

from the relevant OPLA office. For more information on those requests, see Part IV Section A.

If the removal proceedings are terminated, then any deferred action application will be

adjudicated by USCIS. Practitioners may wish to draw the attention of the USCIS adjudicators to

the fact of the termination in the application cover letter to minimize agency delay in

adjudicating the application.

Where the applying noncitizen is not in removal proceedings and has not received a removal

order, the USCIS adjudicators in Montclair will adjudicate both the deferred action and

employment authorization applications. We understand that these adjudicators have received

specialized training for Labor-Based Deferred Action cases.

3. Timing & Expedite Requests

When DHS announced the process enhancements for workers applying for deferred action, the

agency emphasized that the centralized intake point “will allow DHS to efficiently review these

time-sensitive requests.”

The agency further recognized the “time-sensitive labor agency

enforcement interests” and remarked that efficient processing of these applications will reduce

the risk of retaliation from employers under investigation.

But DHS has not published any

goals for processing times for these requests, and neither the deferred action request

(supplemented by Form G-325A) nor the (c)(14) category of I-765 adjudicated in Montclair are

listed on the USCIS processing times tool as of this writing.

Before the announcement of the centralized intake at the Montclair address, there was wide

variation in processing times for Labor-Based Deferred Action across different USCIS Field

Offices.

As of this writing, the authors are not yet aware of any cases that have been fully

adjudicated at the Montclair address. The authors are tracking cases submitted after the guidance

to monitor processing times and will update this manual with more information when it is

available.

https://www.americanimmigrationcouncil.org/sites/default/files/research/alternatives_to_detention_an_ov

erview.pdf.

DHS Announcement, supra note 2.

See U.S. Citizenship & Immig. Servs., Check Case Processing Times,

https://egov.uscis.gov/processing-times/ (last visited Mar. 10, 2023).

In the five USCIS Field Offices that had processed and approved these applications before the

centralized intake announcement, processing time ranged from approximately one month (Boston,

Chicago, and New Orleans), to 3 to 5 months (Las Vegas), to up to 9 months in some cases (Atlanta).

Some cases may be eligible for an expedite request under the USCIS Expedite Criteria,

which

should speed up adjudication in these cases. The three expedite criteria most likely to be relevant

to Labor-Based Deferred Action applications are: emergencies and urgent humanitarian reasons,

non-profit organization interests, and U.S. Government interests.

The last criteria, relating to

U.S. Government interests, specifically includes “cases identified as urgent by other government

agencies, including labor and employment agencies.”

But not all Labor-Based Deferred Action

cases will meet this expedite criteria, which requires the case be “of a scale or uniqueness that

requires immediate action to prevent real and serious harm to U.S. interests” and that a “senior-

level official” make the expedite request.

It is helpful that the criteria list seeking employment

authorization for the purposes of an agency seeking back pay or reinstatement specifically as a

meritorious expedite request.

The newly announced guidance on labor deferred action further

references and reiterates these criteria in the section for labor agencies.

Any time-sensitive deadline, such as an upcoming hearing or other proceeding with the labor

agency or the risk that a guestworker will fall out of status at the end of a post-termination grace

period or otherwise depart the United States, should be immediately communicated to the labor

agency and emphasized in the deferred action filing to USCIS. Consider large bold font on the

first page of the cover letter to draw visual attention to a time-sensitive deadline.

4. Follow-Up & Troubleshooting

Following complete filings submitted to the Montclair address, both the applicant and the

attorney should receive a receipt notice for the I-765, which serves as acknowledgement of the

receipt of the entire application. USCIS does not generate a receipt notice for the deferred action

application because there is no application form. Receipt notices should issue quickly, and

applicants who do not receive a receipt notice within 3 weeks of filing should reach out to DHS

through the DHS CRCL office at [email protected].

Following the receipt notice, the applicant and the attorney should receive notice of a biometrics

appointment at the closest USCIS Field Office’s Application Support Center. This should be a

single biometrics appointment for fingerprinting, signature, and picture for both deferred action

and the employment authorization document. Because of this biometrics collection, Labor-Based

Deferred Action applicants do not need to submit passport-size photos in the original application.

Applicants who do not receive a biometrics appointment notice within 3 weeks of filing should

reach out to DHS through the DHS CRCL office at communi[email protected].

Policy Manual, U.S. Citizenship & Immig. Servs., Chapter 5 - Requests to Expedite Applications or

Petitions, https://www.uscis.gov/policy-manual/volume-1-part-a-chapter-5 (last updated Mar. 7, 2023).

Id.

DHS FAQ, supra note 3.

We understand that DHS CRCL may set up a dedicated separate email address for inquiries related to

Labor-Based Deferred Action applications, but that in the meantime practitioners can use this general

inbox.

5. Responding to Requests for Evidence (RFE)

Thus far, practitioners who filed requests prior to the newly issued guidance have reported varied

and somewhat inconsistent RFEs, including more typical requests for additional evidence of

immigration and criminal history, but also requests for medical records, passport-size photos,

and other evidence that does not appear to be required or specifically relevant to labor-based

cases. These inconsistencies may have been due to the process being new and being adjudicated

by different field offices throughout the country. If an RFE is received from the new Montclair

office, the best practice is to file a response with the best information available as soon as

possible.

In unusual cases, it is possible that the case could be referred to the local USCIS Field Office for

an in-person interview. This will likely only happen if there are significant negative equities or

concerns about fraud.

6. Approval of Labor-Based Deferred Action

If the worker’s application for Labor-Based Deferred Action is approved, USCIS will issue a

one-page letter signed by the adjudicating office granting deferred action for a specific period,

generally for two years. This letter is evidence of the worker’s deferred action status, and they

should carry a copy of it with them. Because the grant of deferred action is neither an admission

nor a parole, the approval notice will not contain an I-94 record.

USCIS should consider the employment authorization application immediately after deferred

action is approved. Because the new guidance streamlines this process, workers should not need

to submit any additional evidence, unless the agency finds the initial packet inadequate and

requests more evidence. DHS has not publicly committed to a timeline for these adjudications,

but practitioners should expect to receive notice of a decision on the employment authorization

application soon after receiving approval of the deferred action. If more than 3 weeks passes,

practitioners should reach out for technical assistance to communi[email protected].

Practitioners may want to directly inform the labor agency that issued the Statement of Interest

or work with the labor/employment attorney or organizer in touch with that labor agency to

inform the supporting agency that deferred action has been granted.

7. Denials

As with every affirmative immigration application, practitioners should prepare their clients for

the possibility of a denial, including risks discussed in Part II Section C. DHS has not issued

specific guidance on whether resubmission of a rejected application for deferred action is

permitted, and if so, under what conditions. However, DHS has stated that the filing fee required

to request employment authorization will not be returned to the requester in the event of a

denial.

This is generally the case with all USCIS benefit requests that are denied.

See DHS FAQ, supra note 3.

E. Special Circumstances

1. Labor-Based Deferred Action Applicants with Significant Negative Equities

(Criminal/Immigration History)

Practitioners should consider submitting more robust equities evidence when applying for

deferred action for workers with significant criminal history and/or negative immigration history

(for example multiple removals and re-entries), or some combination of the two. Practitioners

filing early cases before this recent guidance were generally guided by lessons from the exercise

of discretion in other immigration adjudications such as waivers or prosecutorial discretion

requests to OPLA. For example, workers with traffic violations or one or two entrances without

inspection submitted the streamlined packets described in Part II Section D and generally

received approvals, whereas workers with one or more felonies or serious misdemeanors (like

DUIs) submitted more robust equities evidence.

Practitioners should also be guided by lessons learned from other discretionary forms of relief in

identifying robust equities evidence to counterbalance significant negative criminal or

immigration history. In these cases, a robust statement from the applicant may help to

contextualize mitigating factors. Statements that authentically demonstrate the 3Rs (remorse,

responsibility, and rehabilitation) may be most persuasive. Other positive equities such as

support letters from members of the applicant’s community, friends, and family and evidence of

ties to a local, school, and/or faith community may also help. Evidence of U.S. family members

is always recommended to show such ties. In these more complicated cases, practitioners may

want to ask about other humanitarian factors, such as significant medical illness of the applicant

or immediate family members, and consider submitting records documenting any illness or

condition.

In addition to robust equities evidence, practitioners should prepare a more detailed cover letter

that draws on that evidence to contextualize the negative equities and argue that positive equities

outweigh and militate in favor of approval.

2. Applying for only Labor-Based Deferred Action, without Applying for Work

Authorization

Applicants who wish to apply for deferred action without applying for employment authorization

cannot apply to the Montclair address because their application will be rejected for failing to

include a I-765, I-765WS, and I-912 or fee—all three of which are required components for the

streamlined deferred action process. If applicants are seeking only deferred action and not

employment authorization, they should apply to the local USCIS Field Office. Practitioners

should briefly explain why the worker is applying at the Field office for deferred action rather

than the Montclair address in the cover letter (for example, because the worker wishes to seek

In early deferred action applications, at least one USCIS Field Office issued extensive RFEs in response

to medical records in several cases, requesting proof from applicants that the labor violation resulted in

significant medical harm. For this reason, practitioners may want to frame medical records as relevant for

humanitarian purposes, rather than as evidence that the labor violation resulted in substantial harm (which

is not legally required in discretionary deferred action applications).

only deferred action and not employment authorization). Deferred action applications sent to the

Field Office will not receive any receipt notice or other acknowledgement of receipt,

though

the application should generate a biometrics appointment notice. The biometrics appointment for

deferred action from the Field Office will only collect biometrics information relevant to the

processing of that application, and so the noncitizen will have to complete an additional

appointment if they later decide to apply for employment authorization.

Before the streamlined process was announced through the new DHS guidance, all Labor-Based

Deferred Action applicants submitted their deferred action applications to the local USCIS Field

Office. This resulted in wide variation in adjudication practices, both in terms of delay,

expected evidence, and outcomes. Therefore, practitioners are encouraged to carefully counsel

their client before pursuing this path because it may take significantly longer and require more

evidence than the streamlined process. Applications should at minimum include the required

evidence for the streamlined process, listed in Part II Section D, other than the I-765, I-765WS,

and I-912 or fee, which are not required because the applicant is not seeking employment

authorization. But even with that evidence, the Field Office may request more information. For

example, prior to the issuance of guidance on the streamlined process, practitioners received

RFEs from local USCIS Field Offices for the following evidence, none of which are required for

the streamlined process:

• Passport-size photos

• Any marriage certificate

• Certified copy of birth certificate, with translation

• Medical records documenting harm from the labor violation

• Evidence that the labor agency proceeding is ongoing

• Evidence of state identification

• Current proof of residency within the Field Office’s jurisdiction (such as apartment lease,

electric bills, water bills, etc.)

• Detailed declaration from the applicant

Practitioners may consider reaching out to the USCIS Field Office Director or community

outreach liaison before filing a Labor-Based Deferred Action application to discuss what

evidence is required for adjudication.

If the local USCIS Field Office approves the application for deferred action, then the noncitizen

could later request employment authorization. A I-765 based on approved deferred action should

Because there is no form for requesting Labor-Based Deferred Action, you will not receive a receipt

number and we believe USCIS databases are not tracking these applications. This means that online tools

for tracking the application are not available and the USCIS Contact Center will have no record of the

case.

In early cases, applications were lost or misplaced by some USCIS Field Offices that did not have any

protocol for how to route this type of application, delaying adjudication for weeks.

be submitted to the appropriate lockbox for the state of residence of the applicant.

The

application will then be forwarded to the National Benefits Center. As of this writing,

employment authorization applications sent to the National Benefits Center take approximately 3

months. Practitioners can seek to speed adjudication and draw extra attention to their case by

including a cover page that says in large, bold letters “Labor Deferred Action EAD.”

The EAD packet sent to the appropriate lockbox address should include:

✓ Short Cover letter

✓ I-765 (Application for Employment Authorization)

o use Category (c)(14) “Deferred Action Granted”

✓ I-765WS (Worksheet) (see Appendix 7, available by request only)

✓ G-28 (Notice of Entry of Appearance)

✓ Deferred Action Approval

✓ 2 Passport-size photos

✓ $410 Filing fee or Fee waiver (see Part II Section C)

The I-765WS requires a showing of financial necessity to work. However, it does not require

supporting documents and the requirement can usually be met by stating the worker needs to

work to support themselves, family members, etc. Conversely, if a worker wishes to file a fee

waiver instead of paying the filing fee, they will need to submit Form I-912 and will typically

need to provide a statement and/or other evidence reflecting their inability to pay.

III. Subsequent Requests for Deferred Action after Initial Approval (Renewals)

It is not yet clear what criteria DHS will apply to subsequent requests for Labor-Based Deferred

Action beyond the initial two-year approval period. DHS guidance states: “[t]he recipient [of

Labor-Based Deferred Action] may . . . be eligible to make subsequent requests for deferred

action, which will be adjudicated on a case-by-case basis when a labor agency provides a basis

for such a request as it relates to the labor agency’s ongoing investigative or enforcement

interests.”

Many labor agency Statements of Interest issued to date support deferred action for

the longer of two years or the pendency of the agency’s investigation and any subsequent

litigation, enforcement, or compliance efforts, the length of which vary widely from agency to

agency. It seems likely labor and employment agencies will be willing to support, and DHS

should be willing to grant, subsequent requests for Labor-Based Deferred Action while the labor

or employment agency investigation, and related enforcement efforts, are ongoing.

U.S. Citizenship & Immig. Servs., Direct Filing Addresses for Form I-765, Application for

Employment Authorization, https://www.uscis.gov/i-765-addresses (last updated Feb. 28, 2023)

(directing I-765s based on a grant of deferred action to the lockboxes for family-based forms); see also

U.S. Citizenship & Immig. Servs., USCIS Lockbox Filing Locations for Certain Family-Based Forms

https://www.uscis.gov/uscis-lockbox-filing-locations-chart-for-certain-family-based-forms (last updated

Aug. 1, 2022) (directing to the appropriate lockbox filing address based on state of residence of the

applicant).

See Part II Section D (listing recommended evidence).

DHS FAQ, supra note 3.

Although there is no requirement that a worker applying for Labor-Based Deferred Action

specifically document their helpfulness in the labor or employment agency investigation,

Practitioners may want to advise workers who receive Labor-Based Deferred Action to make

themselves available to the labor or employment agency that issued the Statement of Interest,

provide any relevant information or documents in support of the agency’s efforts, and respond

promptly to any request for assistance. Practitioners should consider documenting these offers of

assistance to build a compelling case in favor of subsequent requests for Labor-Based Deferred

Action, by showing the worker’s continued presence is necessary to support labor and

employment agency efforts to enforce labor and employment law and hold abusive employers

accountable.

There is a strong argument that labor and employment agencies should support, and DHS should

grant, subsequent requests for Labor-Based Deferred Action even after the labor or employment

agency investigation concludes if continued protection is necessary to mitigate the worker’s fear

of immigration-based retaliation from participating in the labor or employment agency

investigation or to address the potential chilling effect immigration enforcement action could

have on other workers. Whether they will do so in practice remains to be seen.

IV. Other Types of Immigration Relief Stemming from Labor Disputes

A. Prosecutorial Discretion in Removal Proceedings

Applications for Labor-Based Deferred Action, even if approved, will not resolve open removal

proceedings nor vacate final orders of removal. Therefore, practitioners may want to seek

prosecutorial discretion from the relevant OPLA office. Practitioners can request prosecutorial

discretion from OPLA at any time, including a) when the labor dispute is initiated b) when the

Statement of Interest is received, or c) when deferred action is granted. One option is to file the

request as early as possible in the labor dispute process and supplement the request later with the

Statement of Interest, USCIS receipt, and/or approval notice as needed. Practitioners may want

to seek termination, stipulations, administrative closure, continuance or other prosecutorial

discretion, depending on whether the noncitizen wishes to pursue relief in removal proceedings.

In any such request, practitioners should cite to the October 12 Worksite Enforcement memo

support for their request and may also consider referring to the 2011 Morton memo on

prosecutorial discretion for victims, witnesses, and plaintiffs.

It is our understanding that OPLA

offices have not received any further guidance from the ICE Principal Legal Advisor beyond

Alejandro N. Mayorkas, Sec’y, U.S. Dep’t of Homeland Sec., Worksite Enforcement: The Strategy to

Protect the American Labor Market, the Conditions of the American Worksite, and the Dignity of the

Individual, Policy Statement 065-06 (Oct. 12, 2021),

https://www.dhs.gov/sites/default/files/publications/memo_from_secretary_mayorkas_on_worksite_enfor

cement.pdf.

John Morton, Dir., U.S. Immig. & Customs Enf’t, Prosecutorial Discretion: Certain Victims, Witnesses,

and Plaintiffs, Policy No. 10076.1 (June 17, 2011), https://www.ice.gov/doclib/foia/prosecutorial-

discretion/certain-victims-witnesses-plaintiffs.pdf.

those memos. The September 30, 2021 Mayorkas memo remains under litigation, which means

that OPLA attorneys are no longer considering those civil immigration enforcement priorities in

making prosecutorial discretion decisions.

It seems unlikely that DHS will issue any further

OPLA guidance while the general enforcement priorities remain under litigation.

Because of the lack of guidance beyond the October 12 Worksite Enforcement memo, regional

OPLA offices may vary in both the timeline and outcome of their decisions. At least one OPLA

office has agreed to several joint motions to reopen and terminate for workers seeking Labor-

Based Deferred Action, though that office did so only after the practitioner identified a pathway

to permanent status beyond Labor-Based Deferred Action for each noncitizen. Practitioners may

wish to consult with others who have submitted prosecutorial discretion requests to the relevant

OPLA office to understand local practice.

B. Parole in Place

Parole in place features in the Labor-Based Deferred Action announcement only as an example

of the mechanisms that exist in U.S. immigration law generally to protect noncitizens from

removal.

Labor-Based Deferred Action does not envision parole in place as the mechanism

through which workers should apply for temporary relief from removal, and DHS officials have

indicated that the central intake point in Montclair, CA is not prepared to accept parole in place

requests at this point. However, practitioners should carefully study their clients’ cases to

determine if a parole application would be more appropriate in certain cases, for example if they

have a qualifying relative through whom they could adjust status if granted parole. In cases

where an application for parole in place may be more advantageous, practitioners may consider

using the Statement of Interest as a positive equity weighing in favor of a grant of parole.

Practitioners should note that USCIS charges $575 to process humanitarian parole in place

applications but does accept fee waiver requests.

Parole in place provides temporary protection from removal for noncitizens who are in the

United States, typically for a set number of years.

DHS may grant parole in place to noncitizens

on a case-by-case basis where there is urgent humanitarian reason or significant public benefit.

Parole in place programs have been sparse, but practitioners may be familiar with military parole

in place and parole in place for families separated under the Trump administration’s “zero

See infra, Appendix 1. DHS has reiterated that “OPLA attorneys, however, may—consistent with

longstanding practice—exercise their inherent professional discretion on a case-by-case basis during the

course of their review and handling of cases.” U.S. Immig. & Customs Enf’t, Prosecutorial Discretion &

the ICE Office of the Principal Legal Advisor, https://www.ice.gov/about-ice/opla/prosecutorial-

discretion (last updated Sept. 12, 2022). Sections of the Doyle memo that do not rely on the civil

enforcement priorities outlined in the Mayorkas memorandum may still guide those decisions. Id.

See DHS Announcement, supra note 2.

U.S. Citizenship & Immig. Servs., I-131, Application for Travel Document, https://www.uscis.gov/i-

131 (last updated Jan. 23, 2023); see also U.S. Citizenship & Immig. Servs., Instructions for Request for

Fee Waiver Form I-912 (Sept. 3, 2021), https://www.uscis.gov/sites/default/files/document/forms/i-

912instr.pdf (listing Form I-131 as eligible for fee waiver if applying for humanitarian parole).

INA § 212(d)(5)(A).

tolerance” policy, both of which use DHS’s parole authority to prevent deportations and prevent

family separation.

Parole in place is only available to noncitizens who are present in the U.S. without being

inspected or admitted.

Since adjustment of status generally requires that a noncitizen be

admitted or paroled, legal practitioners may argue that parole in place counts for purposes of

adjustment to lawful permanent residence in cases where the noncitizen has a pathway to

adjustment available to them and is not otherwise barred.

A grant of parole in place can be terminated by DHS at any time. A grant of parole makes a

noncitizen eligible for an employment authorization document.

USCIS may waive fees

associated with applications for employment authorization for parole in place grantees.

As with

deferred action, parole authorizes the noncitizen’s presence in the U.S. Therefore, while parole

does not cure unlawful presence already accrued for the purposes of the 3- and 10-year bars, time

spent in the U.S. under parole will not count toward the accumulation of unlawful presence.

Parole grantees are considered “qualified aliens” and are thereby eligible for some federal public

benefits.

a) Choosing Between Deferred Action and Parole in Place

Even prior to the January 13 guidance clarifying the form, fee, and supporting materials one

needs to gather to apply for relief for qualifying workers, deferred action has been the path

workers have chosen in recent years. Parole in place, by contrast, has not been tested by workers

with Statements of Interest, even though multiple labor agency letters have specifically

supported it in addition to deferred action. It is our understanding that DHS is less prepared to

adjudicate applications for parole in place and will only accept them at USCIS field offices,

which will generally process them less expeditiously than applications for deferred action at the

U.S. Citizenship & Immig. Servs., Discretionary Options for Military Members, Enlistees and Their

Families, https://www.uscis.gov/military/discretionary-options-for-military-members-enlistees-and-their-

families (last updated Apr. 25, 2022); U.S. Dep’t of Homeland Sec., Interagency Task Force on the

Reunification of Families, Initial Progress Report ii (June 2, 2021),

https://www.dhs.gov/sites/default/files/publications/21_0602_s1_family-reunification-task-force-120-

day-progress-report.pdf.

INA § 212(d)(5)(A).

See INA § 245(a).

8 C.F.R. § 274.a12(c)(11).

U.S. Citizenship & Immig. Servs., Instructions for Request for Fee Waiver Form I-912 (Sept. 3, 2021),

https://www.uscis.gov/sites/default/files/document/forms/i-912instr.pdf (listing Form I-765 as eligible for

fee waiver for categories of employment eligibility other than DACA).

INA § 212(a)(9)(B)(ii); Adjudicator’s Field Manual, U.S. Citizenship & Immig. Servs., ch.

40.9.2(b)(1), https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm40-external.pdf

(last visited Mar. 10, 2023) (“An alien does not accrue unlawful presence . . . if he or she has been

inspected and paroled into the United States and the parole is still in effect.”).

PRWORA § 431(b)(4), supra note 14.

new Montclair filing location. Adjudication may therefore vary depending on the local USCIS

field offices, with potential backlogs and untested filing requirements.

Practitioners weighing which form of affirmative relief to pursue on behalf of their client will

need to weigh the pros and cons of the deferred action and parole in place mechanisms before

counseling their client on the issue. For example, a practitioner representing a client who has not

been admitted or paroled who otherwise has a clear path to adjustment to lawful permanent

resident status might consider applying for parole in place based on the same labor-based criteria

set forth for deferred action in the new guidance and including a Statement of Interest (many of

which specifically include parole as an alternative form of prosecutorial discretion). Because this

path is not yet tested, practitioners may want to engage with the local Field Office Director

before or after submitting an application. Additionally, follow up from officials with the labor

agency who issued the Statement of Interest could also be helpful.

Practitioners should note that nothing precludes noncitizens from applying for both deferred

action and parole in place, though this strategy is untested and the applications will likely go to

different offices and different adjudicators who are not in direct contact with each other. For

instance, a streamlined deferred action application should be submitted to the Montclair address

and will likely be adjudicated first, whereas the parole in place application will go to the local

USCIS Field Office and will likely take much longer. It is possible that the USCIS Field Office

adjudicator will not grant parole in place after deferred action is approved because the labor

agency interest in protecting the worker from removal is covered by either of these forms of

temporary protection.

C. Requests for Noncitizens Presently Outside the United States

Labor-Based Deferred Action is only available to those who are present in the United States, and

so noncitizens who are covered by a Statement of Interest but are located outside the United

States will need to obtain an entry document to cross the border. Workers who have returned to

their home country, including undocumented workers and especially guestworkers (on H-2A, H-

2B, H-1B, J-1 or other guestworker visas), may fall within this category. Unless the noncitizen is

independently eligible for a visa or other permission to enter, the likely mechanism for

permission to enter the U.S. is parole.

DHS can grant parole, in their discretion, to noncitizens seeking admission to the United States

on a “case-by-case basis for urgent humanitarian reasons or significant public benefit.”

Parole

is not a formal admission, but with parole, the noncitizen can obtain an entry document at a U.S.

consulate or embassy and present that at the border to seek entry and permission to temporarily

remain in the U.S. for the duration of the parole.

In a stakeholder engagement, one local USCIS Field Office Director indicated that the agency would

want more evidence of positive equities in an application for parole in place (as compared to an

application for deferred action) because parole in place confers an additional immigration benefit in

permitting path to adjustment of status for some noncitizens.

INA § 212(d)(5)(A).

The guidance published on January 13, 2023 does not discuss parole into the U.S.

DHS has no

other published guidance on whether or how the agency will consider requests for immigrants in

labor disputes to enter the U.S. on parole. While there have been a few successful cases where an

immigrant worker has obtained parole to enter the United States over the past decade, it is not

clear what those cases mean for DHS treatment of labor-related parole requests in general. There

are thus many unknowns in seeking permission for a noncitizen worker abroad to enter the U.S.

based on their participation in a labor dispute.

The key open questions in this type of request are which sub-agency (USCIS, ICE, or CBP) will

adjudicate these parole requests

and whether these requests will be considered humanitarian or

significant public benefit parole.

Individuals can apply directly for humanitarian parole, but

processing times can be very long,

and the criteria are not a perfect fit for noncitizen workers

seeking to enter the U.S. to participate in agency proceedings.

Significant public benefit parole

is generally faster and does not require a fee, but it must be requested directly by a government

agency and sometimes entails ongoing monitoring.

100

It is our understanding that labor and employment agencies should reach out directly to DHS for

support on inter-agency parole requests for noncitizens outside the United States.

See DHS FAQ, supra note 3.

Under a 2008 memo, DHS has allocated authority among its three sub-agencies for the different parole

programs. Memorandum of Agreement Between DHS-USCIS, DHS-ICE, and DHS-CBP for the Purposes

of Coordinating the Concurrent Exercise by USCIS, ICE, and CBP of the Secretary’s Parole Authority

Under INA § 212(d)(5)(A) with Respect to Certain Aliens Located Outside of the United States (Sept. 29,

2008), https://www.ice.gov/doclib/foia/reports/parole-authority-moa-9-08.pdf. That allocation of

authority does not specifically address request for immigrant workers in labor disputes, but three listed

categories are relevant. First, requests based on urgent medical, family, and related needs are allocated to

USCIS. Id. Second, requests for noncitizens who participate in “administrative . . . proceedings, and/or

investigations, whether at the federal, state, local, or tribal level of government” are allocated to ICE. Id.

Third, requests for noncitizens who will participate in civil proceedings where all parties are private

litigants are allocated to USCIS. Id.

While the INA refers only to a single, unitary authority to “parole” applicants for admission, DHS has

administratively created distinct processing for two types of parole: humanitarian parole and significant

public benefit parole. Id. DHS construes requests based on urgent medical, family, and related needs as

requests for humanitarian parole. DHS treats requests by a law enforcement agency for persons of “law

enforcement interest” such as witnesses as requests for significant public benefit parole. Id.

Advocates report long delays as well as inconsistent adjudication of humanitarian parole applications.

See generally Nat’l Immig. Forum, Explainer: Humanitarian Parole, Part III Section E (Mar. 24, 2022),

https://immigrationforum.org/wp-content/uploads/2022/03/Explainer-Humanitarian-Parole.pdf

(discussing backlogs and high rates of denials).

U.S. Citizenship & Immig. Servs., Guidance on Evidence for Certain Types of Humanitarian or

Significant Public Benefit Parole Requests, https://www.uscis.gov/humanitarian/humanitarian-

parole/guidance-on-evidence-for-certain-types-of-humanitarian-or-significant-public-benefit-parole-

requests (last updated June 23, 2022).

100

There is not much public information about inter-agency significant public benefit parole requests. See

U.S. Dep’t of Homeland Sec., Privacy Impact Assessment for the ICE Parole and Law Enforcement

Programs Unit Case Management Systems DHS/ICE/PIA-049 (Dec. 3, 2018),

https://www.dhs.gov/sites/default/files/publications/privacy-pia-ice-plepucms-december2018.pdf.

There are a number of considerations in deciding whether to seek humanitarian or significant

public benefit parole from USCIS or ICE.

101

Table 5 below outlines the significant differences as

of this writing. Please reach out for technical assistance as you consider a parole request.

Table 5: Comparing Humanitarian and Significant Public Benefit Parole

HUMANITARIAN PAROLE

SIGNIFICANT PUBLIC

BENEFIT PAROLE

Adjudicating agency

ICE (if currently in removal

proceedings or has been deported)

or USCIS (if no removal

proceedings or deportation)

ICE (to participate in

administrative or judicial

proceedings) or USCIS (in some

other instances)

Who applies?

Individual seeking parole or a

petitioner in the U.S.

Law enforcement agency

Application fee?

$575, as of this writing, or can seek

waiver of fees

None

Application requirements

I-131, I-134 (must have financial

supporter)

Completed by law enforcement

agency

Ongoing monitoring

Rare

Common

Processing Time

Months or years, as of this writing

Likely fast

Eligible for a work permit?

Agency has discretion to grant work

authorization after entry into the

U.S. if not inconsistent with purpose

of the parole

Agency has discretion to grant

work authorization after entry

into the U.S. if not inconsistent

with purpose of the parole

D. Other related relief–T & U Nonimmigrant Visas

The labor dispute underlying the worker’s eligibility for deferred action can potentially rise to

eligibility for T/U Nonimmigrant Status depending on the facts of an individual worker’s

case. As these statuses provide a pathway to legal permanent residency—and are not mutually

exclusive to applying for deferred action—advocates should be sure to screen for them and

employ a holistic strategy to the worker’s overall immigration case.

Many federal and state labor and employment agencies will consider requests for U or T

certifications of helpfulness. This presents an alternative to traditional law enforcement certifiers

(police, prosecutors, and courts), some of whom may view workplace crimes as primarily civil

matters outside their purview. Some noncitizen crime victims are also more fearful of reporting

to traditional law enforcement because of the association with policing, arrests, and jails—and, in

some areas, information-sharing or even joint operations with ICE. Finally, labor and

employment agencies hold particular expertise in understanding crimes related to workplace

power dynamics and so they may be more equipped to investigate workplace crimes than

traditional law enforcement.

101

USCIS acknowledges that a request for parole can be based on both humanitarian and significant

public benefit reasons. U.S. Citizenship & Immig. Servs., Humanitarian or Significant Public Benefit

Parole for Individuals Outside the United States,

https://www.uscis.gov/humanitarian/humanitarianpublicbenefitparoleindividualsoutsideUS (last updated

Sept. 9, 2022).

Both T and U Nonimmigrant Status provide significant benefits including a path to long term

status, inclusion of derivatives, and generous waivers of grounds of inadmissibility. T petitions

have a significantly shorter backlog and do not require a law enforcement certification, which is

required for U petitions. However, T petitions require that the petitioner suffered labor

trafficking, whereas workers can seek U Nonimmigrant Status based on trafficking or other

qualifying criminal activity. Practitioners should always screen for U and T eligibility and

discuss these pathways to permanent status—and interim protections

102

such as Continued

Presence and Bona Fide Determination Deferred Action—with workers who might be eligible.

Table 6 compares the various immigration benefits that may be available to workers.

Table 6: Comparison of Immigration Benefits

NONIMMI-

GRANT

STATUS

NONIMMI-

GRANT

STATUS

CONTINUED

PRESENCE

103

BONA FIDE

DETERMINATION

/DEFERRED

ACTION FOR

PENDING U

PETITIONS

LABOR-

BASED

DEFERRED

ACTION

Benefits

Protection

from

deportation,

work permit

Protection

from

deportation,

work permit

Protection from

deportation, work

permit

Protection from

deportation, work

permit

Protection

from

deportation,

work permit

Eligibility

Must suffer

qualifying

crime

Must suffer

labor

trafficking

Must suffer labor

trafficking and be

eligible for T

nonimmigrant

status

Must suffer

qualifying crime and

have petitioned for U

nonimmigrant status

Must fall

within the

scope of

Statement of

Interest

Backlog

10-15 years

1-3 years

None

5 years

104

None

Length of

Protection

4 years

2 years

(renewable)

4 years (renewable)

Generally 2

years

(potentially

renewable)

102

ICE guidance additionally instructs its officials to refrain from taking civil immigration enforcement

action against victims with pending applications for SIJ status, U status, T status, or VAWA relief absent

exceptional circumstances. U.S. Immig. & Customs Enf’t, Using a Victim-Centered Approach with

Noncitizen Crime Victims, ICE Directive 11005.3 (August 10, 2021),

https://www.ice.gov/doclib/news/releases/2021/11005.3.pdf.

103

Although Continued Presence offers similar benefits to deferred action, when available it is preferred

because it provides greater access to federal benefits, as well as strong evidence of law enforcement

cooperation in support of the T Nonimmigrant Status Petition. See U.S. Immig. & Customs Enf’t, Center

for Countering Human Trafficking, Continued Presence Resource Guide (July 2021),

https://www.ice.gov/doclib/human-trafficking/ccht/continuedPresenceToolkit.pdf.

104

See U.S. Citizenship & Immig. Servs., Check Case Processing Times,

https://egov.uscis.gov/processing-times/ (last visited Mar. 10, 2023).

Long-term

Pathway

Pathway to

Green Card

Pathway to

Green Card

None (but see T

Nonimmigrant

Status)

None (but see U

Nonimmigrant

Status)

None

1. Identifying Labor Trafficking & Eligibility for T Nonimmigrant Status

Labor trafficking occurs in all types of industries and workplaces under a wide variety of

circumstances. While it is beyond the scope of this advisory to provide an in-depth discussion of

the legal elements of labor trafficking,

105

practitioners should look for indications that the worker

felt coerced into working against their will. Some other important practice pointers for screening

are that labor trafficking:

• Does NOT need to involve movement or confinement—any type of exploitation where a

person feels forced to provide labor involuntarily.

• Does NOT need to be the reason the worker initially entered the United States. They can

be trafficked within the country after any type of entry (EWI, tourist or guestworker visa,

etc.).

• Does NOT require workers to not have been paid so long as labor was obtained through

force, fraud, or coercion.

• Can involve a range of labor abuse: threats against immigration status, sexual assault,

physical confinement and withholding of payments, documents, or personal freedom.

2. Identifying Labor-Based Qualifying Crimes for Eligibility for U Nonimmigrant Status

Practitioners should screen for all qualifying crimes and consider all certifiers, including

traditional law enforcement as well as labor and employment agencies.

106

DOL’s Wage & Hour Division (WHD) is authorized to certify eight Qualifying Crimes for U

petitions. OSHA recently became a certifying agency and will now certify the same crimes as

WHD as well as several others (see Table 7 below). Other federal and state labor agencies will

certify to helpfulness to support a U petition for any qualifying crimes related to their

enforcement mandate.

105

The Coalition to Abolish Slavery and Trafficking (CAST) offers a range of trainings on identifying

human trafficking, practice advisories on various topics, and ongoing technical assistance through a

monthly working group call. See Coal. to Abolish Slavery & Trafficking, Training & Resources,

https://www.castla.org/training-resources/training/ (last updated Mar. 1, 2023).

106

For a full list of U-Visa Qualifying Crimes, see U.S. Citizenship & Immig. Servs., Victims of Criminal

Activity: U Nonimmigrant Status, https://www.uscis.gov/humanitarian/victims-of-human-trafficking-and-

other-crimes/victims-of-criminal-activity-u-nonimmigrant-status (last updated Feb. 28, 2022).

Table 7: Labor Agencies Certifying U and T Visas

LABOR AGENCY

U/T CERTIFYING

AUTHORITY?

CRIMES AGENCY WILL CERTIFY

U.S. DOL WHD

107

Yes

Trafficking, Involuntary Servitude, Forced Labor,

Peonage, Witness Tampering, Obstruction of Justice,

Extortion, Fraud in Foreign Labor Contracting

U.S. DOL OSHA

108

Yes

Trafficking, Involuntary Servitude, Forced Labor,

Peonage, Witness Tampering, Obstruction of Justice,

Extortion, Fraud in Foreign Labor Contracting, Murder,

Manslaughter, and Felonious Assault

109

EEOC

110

Yes

Trafficking, any qualifying crime related to its

enforcement of discrimination laws

NLRB

111

Yes

Trafficking, any qualifying crime related to its

enforcement of labor laws

State Agencies

112

Varies by state

Given the extreme U visa backlogs, Labor-Based Deferred Action could provide a short-term

path to work authorization. However, given that Bona Fide Determination Deferred Action is

generally issued for a four-year term and is presumptively renewable while the U petition is

pending, practitioners may consider using the Statement of Interest as a basis for a request to

expedite the BFD adjudication. Practitioners can consider this strategy for all U petitioners with

a pending U petition, including those based on a previous victimization unrelated to the labor

dispute.

113

107

U.S. Dep’t of Labor, U and T Visa Certifications, https://www.dol.gov/agencies/whd/immigration/u-t-

visa (last visited Mar. 10, 2023).

108

Readout, U.S. Dep’t of Labor, U.S. Department of Labor expands OSHA’s Ability to Protect All

Workers by Certifying Special Visa Applications to Ensure Effective Enforcement (Feb. 13, 2023),

https://www.osha.gov/news/newsreleases/readout/02132023.

109

James Frederick, Deputy Assistant Sec’y of Labor for Occupational Health and Safety, Press

Conference Statement (February 13, 2023).

110

U.S. Equal Emp’t Opportunity Comm’n, EEOC Procedures: Requesting EEOC Certification for U

Nonimmigrant Classification (U visa) Petitions in EEOC Cases, https://www.eeoc.gov/eeoc-procedures-

requesting-eeoc-certification-u-nonimmigrant-classification-u-visa-petitions-eeoc (last visited Mar. 10,

2023).

111

Richard A. Siegel, Assoc. Gen. Counsel, Nat’l Labor Relations Bd., Updated Procedures in Addressing

Immigration Status Issues that Arise During NLRB Proceedings, Memorandum OM 11-62 (June 7,

2011), https://apps.nlrb.gov/link/document.aspx/09031d45818801f9.

112

For a list of state labor agencies that certify in California, New York, and Illinois, see Eunice Cho,

Nat’l Emp. Law Project, U-Visas for Victims of Crime in the Workplace: A Practice Manual (May 2014),

https://www.nelp.org/wp-content/uploads/2015/03/U-Visas-for-Victims-of-Workplace-Crime-Practice-

Manual-NELP.pdf.

113

ASISTA offers trainings, practice advisories, and technical assistance for noncitizen crime survivors

pursuing U or T Nonimmigrant Status and related protections. ASISTA, Trainings,

https://asistahelp.org/inspire_events/ (last visited Mar. 10, 2023).

V. Frequently Asked Questions

A. Advance Parole & Travel Outside the United States

A grant of deferred action does not permit a grantee to travel abroad and reenter the United

States in that same status. Nevertheless, recipients of deferred action may wish to travel outside

of the United States while they hold this status. Advance parole is the traditional route to seek

advance permission to re-enter the U.S. after travel abroad.

114

USCIS has the authority to grant advance parole in its discretion,

115

but it is not yet clear what

standard the agency will apply for advance parole for recipients of Labor-Based Deferred Action

or even if USCIS will grant advance parole to Labor-Based Deferred Action recipients at all. In

some instances where USCIS has announced new guidance on deferred action, the agency has

expressly foreclosed the availability of advance parole.

116

The current DHS guidance on Labor-

Based Deferred Action does not address advance parole at all.

117

In the past, some practitioners

have reported that USCIS has receipted and approved advance parole for non-DACA deferred

action recipients in general, before the announcement of Labor-Based Deferred Action.

118

This

path is not yet tested for those who receive Labor-Based Deferred Action under the new DHS

guidance.

119

114

See generally Adjudicator’s Field Manual, U.S. Citizenship & Immig. Servs., ch. 54,

https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm54-external.pdf (last visited

Mar. 10, 2023); see also Elizabeth Carlson and Joanna Mexicano Furmanska, Cath. Legal Immig.

Network, Inc., All About Parole 31 (Aug. 2022), https://www.cliniclegal.org/resources/parole/all-about-

parole-practice-advisory (“The eligibility criteria [for advance parole] vary depending on the underlying

basis for the advance parole request.”).

115

INA § 212(d)(5)(A).

116

See, e.g., U.S. Citizenship & Immig. Servs., Special Immigrant Juvenile Policy Update National

Engagement (Apr. 27, 2022), https://www.uscis.gov/sites/default/files/document/outreach-

engagements/National_Engagement-Special_Immigrant_Juvenile_Policy_Updates-Q%26A.pdf (“SIJ

classified noncitizens granted deferred action under this policy will not be eligible to apply for advance

parole.”).

117

DHS FAQ, supra note 3.

118

There is also an ambiguous reference to advance parole for non-DACA deferred action recipients in an

old USCIS report. U.S. Citizenship & Immig. Servs., USCIS Advance Parole Documents, USCIS (Jan. 6,

2017), https://www.dhs.gov/sites/default/files/publications/USCIS%20-

%20USCIS%20Advance%20Parole%20Documents.pdf (“As noted in the report, although USCIS is

unable to provide volume data on non-DACA deferred action recipients who obtained advance parole

documents because USCIS systems currently do not track this information electronically, USCIS is able

to identify that individuals who obtained advance parole documents because DACA recipients were a

small portion of the total group.”).

119

Non-DACA deferred action recipients seeking advance parole who seek to apply, understanding the

risk of denial, could fill out Form I-131 Application for Travel Document, enclose a fee or fee waiver and

other supporting evidence, and submit to the filing address for “All other applicants (including re-entry

permit applicants).” U.S. Citizenship & Immig. Servs., Direct Filing Addresses for Form I-131

Application for Travel Document, https://www.uscis.gov/i-131-addresses (last updated Nov. 1, 2022);

U.S. Citizenship & Immig. Servs., I-131 Application for Travel Document, https://www.uscis.gov/i-131

(last updated Jan. 23, 2023).

Travel with advance parole satisfies the requirement that noncitizens seeking to adjust status be

“inspected and admitted or paroled.”

120

But practitioners should be mindful of the fact that, even

if advance parole is granted, deferred action grantees seeking to reenter the United States with

advance parole are subject to inspection at the port of entry and could be barred from reentering.

Customs and Border Protection (CBP) officers make case-specific determinations at the port of

entry about whether a noncitizen who is seeking admission into the United States is inadmissible

or should be denied entry for other reasons. For that reason, practitioners considering pursuing

advance parole should carefully screen their client’s case for all grounds of inadmissibility

because of the risk of being denied re-entry even with approved advance parole. The screening

should include scrutiny to identify permanent bar issues,

121

3-and-10-year bar issues, and

criminal grounds of inadmissibility.

Practitioners should note that deferred action grantees with unexecuted removal orders

122

will

likely be viewed as having executed the removal order upon departure from the United States.

B. Civil Rights Cases & Private Rights of Action

Many legal cases involving labor rights violations are brought as private civil actions. Moreover,

other federal agencies also have interests in enforcing civil rights and other federal laws through

individuals coming forward to file complaints and participate in investigations. Although not

included in the new guidance, government officials have signaled an openness to considering

deferred action for workers or other noncitizen complainants involved in private actions against

employers or other entities that have violated their civil rights, including government agencies.

Practitioners should be mindful, however, that only requests accompanied by a Statement of

Interest from a labor or employment agency can be processed through the Montclair, California

centralized process. Applications for deferred action that are not accompanied by a Statement of

Interest should be submitted to the local USCIS Field Office.

123

120

INA § 245(a).

121

But see Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) (travel outside of the United

States on advance parole does not constitute a “departure” and does not trigger the unlawful presence 10-

year bar under INA § 212(a)(9)(B)(i)(II)).

122

As described in Part II Section D, USCIS is unlikely to accept jurisdiction over cases where the

applicant has a final order of removal or is in removal proceedings. However, individuals in that situation

may have applied for deferred action with ICE ERO.

123

See Part II Section E.

VI. Appendices

Appendix 1: Timeline of Prior DHS Guidance on Labor Disputes

Advocates and workers have been raising concerns about the conflict between immigration and

labor enforcement for over a decade. Those efforts included high-profile organizing campaigns

that generated public outcry over the excesses of immigration enforcement during the Bush and

Trump administrations, such as mass worksite raids, impersonation of federal workplace safety

inspectors to entrap immigrant workers, and immigration enforcement in retaliation against

workers exercising their labor rights.

124

In response, DHS has increasingly recognized the

enforcement interests of labor law agencies and the need for DHS to consider case-by-case

prosecutorial discretion in immigration enforcement to further that interest.

Below is a timeline of the key DHS memos and agreements that have incrementally recognized

the conflict between immigration and labor enforcement, laying the groundwork for the most

recent guidance. All of the Obama-era memoranda and agreements have remained in effect since

they were issued, including during the Trump administration when many other immigration

enforcement memoranda were repealed. Every major guidance document on immigration

enforcement priorities during the Biden administration has included some consideration of the

exercise of labor rights, although some of those have been enjoined or remain the subject of

litigation.

Over the course of this time period, in addition to these policy statements, DHS has granted

several requests for deferred action for immigrant workers involved in labor disputes on a case-

by-case basis.

• June 2011: Then-ICE Director John Morton issued a memo (“the Morton Memo”) to

remind officers of their authority to exercise prosecutorial discretion “in removal cases

involving . . . victims and witnesses” and

125

that “[p]articular attention should be paid

to: . . . individuals engaging in a protected activity related to civil or other rights (for

example, union organizing or complaining to authorities about employment

discrimination or housing conditions) who may be in a non-frivolous dispute with an

employer, landlord, or contractor.”

• December 2011: ICE and the DOL signed an MOU that commits ICE to considering

DOL requests for “a temporary law enforcement parole or deferred action to any witness

needed for [an agency’s] investigation of a labor dispute during the pendency of the

[agency’s] investigation and any related proceedings where such witness is in the country

124

Steven Greenhouse, U.S. Officials Defend Ploys to Catch Immigrants, N.Y. TIMES, Feb. 11, 2006,

https://www.nytimes.com/2006/02/11/us/us-officials-defend-ploys-to-catch-immigrants.html; see

generally AFL-CIO, Am. Rights at Work Educ. Fund, Nat’l Emp’t Law Project, ICED OUT: How

Immigration Enforcement Has Interfered with Workers’ Rights (March 2015), https://s27147.pcdn.co/wp-

content/uploads/2015/03/ICED_OUT.pdf.

125

John Morton, Dir., U.S. Immig. & Customs Enf’t, Prosecutorial Discretion: Certain Victims,

Witnesses, and Plaintiffs, Policy No. 10076.1 (June 17, 2011),

https://www.ice.gov/doclib/foia/prosecutorial-discretion/certain-victims-witnesses-plaintiffs.pdf.

unlawfully.”

126

The memo also created the deconfliction process, where ICE agrees to

refrain from conducting worksite enforcement operations at worksites under investigation

by the DOL for a labor dispute, subject to narrow exceptions.

127

• May 2016: ICE and the DOL, NLRB, and EEOC signed an addendum to the 2011 MOU,

which, among other terms, included the NLRB and EEOC as agencies that could request

temporary law enforcement parole or deferred action for witnesses.

128

The addendum also

extends the deconfliction process to include labor dispute investigations by the NLRB

and EEOC.

• May 2016: HSI updated the instructions to its agents on worksite immigration

enforcement during labor disputes to reflect the agency’s commitments under the MOUs

with the federal labor agencies. Those instructions require immigration agents to look for

indications that immigration enforcement may be used to suppress the exercise of labor

rights.

129

• May 2021: The memo to ICE’s Office of the Principal Legal Advisor (OPLA) (the

“Trasviña memo”) on interim prosecutorial discretion priorities included “status as a

victim, witness, or plaintiff in civil or criminal proceedings” as a mitigating factor

supporting the exercise of discretion

130

In addition, the memo expressly noted that cases

“will merit dismissal in the absence of serious aggravating factors” where “a noncitizen is

a cooperating witness or confidential informant or is otherwise significantly assisting

state or federal law enforcement.” The memo defined “law enforcement” to include

“enforcement of labor and civil rights laws.”

131

126

U.S. Dep’t of Homeland Sec. and U.S. Dep’t of Labor, Revised Memorandum of Understanding

between the Departments of Homeland Security and Labor Concerning Enforcement Activities at

Worksites (Dec. 7, 2011), https://www.dol.gov/sites/dolgov/files/OASP/DHS-DOL-MOU_4.19.18.pdf

127

Id.

128

U.S. Dep’t of Homeland Sec., U.S. Dep’t of Labor, U.S. Equal Emp’t Opportunity Comm’n, Nat’l

Lab. Rels. Bd., Addendum to the Revised Memorandum of Understanding between the Departments of

Homeland Security and Labor Concerning Enforcement Activities at Worksites (May 5, 2016),

https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-4684/dol-ice_mou-

addendum_w.nlrb_osha.pdf.

129

These instructions were referred to as Operating Instruction 287.3(a) when first published in 1996 and

then later designated as ICE Special Agent’s Field Manual (SAFM) 33.14(h). Peter T. Edge, Exec. Assoc.

Dir., Homeland Sec. Investigations, Guidance on Civil Inspections of the Employment Eligibility

Verification Form (Form I-9) During Labor Disputes (May 10, 2016), https://www.nilc.org/wp-

content/uploads/2016/11/ICE-Guidance-on-I-9-Audits-During-Labor-Disputes-2016-05-10.pdf.

130

John D. Trasviña, Principal Legal Advisor, Immig. & Customs Enf’t, Interim Guidance to OPLA

Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Procedures (May 27,

2021), https://www.ice.gov/doclib/about/offices/opla/OPLA-immigration-enforcement_interim-

guidance.pdf.

131

This memo was suspended after an injunction of the interim prosecutorial discretion priorities on

August 19, 2021. See Mem. Op. & Order, Texas v. United States, Civ. No. 6:21-cv-00016 (S.D. Tex.

Aug. 19, 2021) (enjoining the implementation of interim prosecutorial discretion priorities contained in

the January 20, 2021 Pekoske memo and the February 18, 2021 Johnson memo). The Trasviña memo was

additionally superseded in 2022 by the Doyle OPLA memo.

• September 2021: Secretary Mayorkas issued a memo (“the Mayorkas memo”) to further

define prosecutorial discretion priorities for DHS’s civil immigration enforcement.

132

The

memo recognizes the important benefit of immigrants participating in investigations and

legal proceedings that enforce labor, housing, and other laws.

133

• October 2021: Secretary Mayorkas issued a memo (“Worksite Enforcement memo” or

“October 12 memo”) outlining efforts at DHS to support the exercise of workplace rights,

representing a significant shift toward developing a role to complement efforts to enforce

labor and employment standards.

134

The memo calls for the agency to adopt

“immigration enforcement policies to facilitate the important work of the Department of

Labor and other government agencies to enforce wage protections, workplace safety,

labor rights, and other laws and standards.” The memo directed DHS to develop

recommendations for how the agency can “alleviate or mitigate” the fear immigrant

workers experience when considering whether to report violations and cooperate with

labor enforcement agencies. Notably, the memo states that plans should provide for

consideration of deferred action, parole, and other available relief for workers. The memo

also further instructs DHS to consider requests from DOL for deferred action for worker

witnesses or complainants on a case-by-case basis, weighing the “legitimate enforcement

interests of a federal government agency” against “any derogatory information to

determine whether a favorable exercise of discretion is merited.”

• April 2022: A new OPLA prosecutorial discretion memo

135

(“the Doyle memo”)

reiterated that “status as a victim of crime or victim, witness, or party in legal

proceedings, including related to human trafficking and labor exploitation” is a mitigating

factor to consider in assessing whether a noncitizen is a threat to public safety.

136

132

Alejandro N. Mayorkas, Sec’y, U.S. Dep’t of Homeland Sec., Guidelines for the Enforcement of Civil

Immigration Law, (Sept. 30, 2021), https://www.ice.gov/doclib/news/guidelines-civilimmigrationlaw.pdf.

133

This memo was vacated on June 10, 2022. Mem. Op. & Order, Texas v. United States, No. 6:21-cv-

00016 (S.D. Tex. June 10, 2022). The federal government appealed that decision and then sought a stay

and writ of certiorari before the U.S. Supreme Court, which heard argument in the case on November 29,

2022. A decision is expected sometime in 2023.

134

Alejandro N. Mayorkas, Sec’y, U.S. Dep’t of Homeland Sec., Worksite Enforcement: The Strategy to

Protect the American Labor Market, the Conditions of the American Worksite, and the Dignity of the

Individual (Oct. 12, 2021),

https://www.dhs.gov/sites/default/files/publications/memo_from_secretary_mayorkas_on_worksite_enfor

cement.pdf.

135

Kerry E. Doyle, Principal Legal Advisor, Immig. & Customs Enf’t, Guidance to OPLA Attorneys

Regarding the Enforcement of Civil Immigration Laws and the Exercise of Prosecutorial Discretion

(April 3, 2022), https://www.ice.gov/doclib/about/offices/opla/OPLA-immigration-

enforcement_guidanceApr2022.pdf.

136

OPLA has stated that OPLA attorneys are no longer applying sections of this memo that rely on the

currently vacated September 30, 2021 Mayorkas Memo, which remains in litigation. U.S. Immig. &

Customs Enf’t, Prosecutorial Discretion & the ICE Office of the Principal Legal Advisor,

https://www.ice.gov/about-ice/opla/prosecutorial-discretion (last updated Sept. 12, 2022).

Appendix 2: Template Request for a Statement of Interest from Labor or Employment

Agency

[AGENCY NAME AND ADDRESS]

XXX 202X

Re: Request for Statement of Interest

[Case Name] [Case/Inspection Number]

To Whom It May Concern:

I write as attorney for [CLIENT], worker complainant(s) and/or witness(es) in [CASE NAME],

[CASE NUMBER] before [AGENCY]. We write to request [AGENCY] submit a Statement of

Interest to support worker victims and witnesses in this case who may wish to apply to the

Department of Homeland Security for prosecutorial discretion, including, but not limited to,

deferred action or parole, and work authorization.

[DESCRIBE LEGAL BASIS OF COMPLAINT, CURRENT STATUS, AND CLIENT

PARTICIPATION. E.g., CASE NAME alleges violations of the minimum wage and overtime

provisions of the Fair Labor Standards Act. The case is currently pending before the Houston

District Office of the Department of Labor’s Wage and Hour Division.]

[DESCRIBE STAKES of potential or actual retaliation on the labor investigation. E.g. Fear of

immigration retaliation has made numerous workers, including CLIENT, reluctant to participate

in DOL’s investigation. Workers’ fear is particularly acute in this case because their employer

explicitly threatened to report several workers to immigration earlier this month after a meeting

at the workplace during which workers complained about ongoing wage theft and other labor law

violations. A history of worksite immigration raids in the region has further contributed to a

pervasive chilling effect that is deterring worker cooperation in the ongoing DOL investigation.]

Therefore, we request [AGENCY] issue a Statement of Interest in this case to support individual

applications for deferred action and/or parole, and work authorization, from workers to facilitate

[AGENCY]’s [pending investigation, litigation, or enforcement interests] and to counteract the

chilling effect on labor disputes caused by the fear of immigration-based retaliation, consistent

with the criteria in [DOL or other agency’s]’s guidance on this process. [“Process for Requesting

Department of Labor Support for Requests to the Department of Homeland Security for

Immigration-Related Prosecutorial Discretion During Labor Disputes,” Department of Labor

(July 6, 2022), available at https://www.dol.gov/sites/dolgov/files/OASP/files/Process-For-

Requesting-Department-Of-Labor-Support-FAQ.pdf].

We request the Statement of Interest include all workers employed by [EMPLOYER] at

[WORKSITE(S)] at any time from [DATES RELEVANT TO LABOR DISPUTE], as these

workers are all potential victims and witnesses in [CASE NAME] during the pendency of the

agency’s investigation and litigation, or during the period of any enforceable judicial order or

decree, including any period of compliance and monitoring.

Thank you for your attention to this matter. If any further information is needed, please do not

hesitate to contact me at [CONTACT INFO].

Best,

[PRACTITIONER NAME]

Counsel for [CLIENT]

Appendix 3: Intake Form for Labor-Based Deferred Action and Employment

Authorization

Date: ___________________ Interviewer Name: ________________________

Last Name(s), First Name: __________________________________

Preferred Language: _________________________ ______________

Date of Birth: ________________________

Best Contact:_______________________ Alternative Contact: _____________________

BIOGRAPHICAL INFORMATION

➔

Fill out Form G-325 and save a PDF

EMPLOYMENT INFORMATION

Where do you work currently?

Industry:

Dates of employment at [Employer(s) listed in Statement of Interest]

Did you use your real name with this employer? □ Yes □ No

How did they pay you?

IMMIGRATION HISTORY

Do you have an immigration lawyer working on your case? □ Yes □ No

If so, who?

Do you give permission to contact your attorney? □ Yes □ No

Country/Countries of Origin, Nationality, or Citizenship:

___________________________ __

Current Immigration Status (on work visa? expired work visa? no status?)

If work visa expired, when?

Check the current list of designations and redesignations for Temporary Protected Status for the worker’s

country of origin: https://www.uscis.gov/humanitarian/temporary-protected-status.

Practitioners may view these documents by completing the following form:

https://tulane.co1.qualtrics.com/jfe/form/SV_3TYmLAhHX5k2hBY.

Appendix 4: Sample Labor Agency Statements of Interest

Appendix 5: Sample Cover Letter Requesting Labor-Based Deferred Action

Appendix 6: Sample Declaration Regarding Employment and Request from Labor-Based

Deferred Action Applicant

Appendix 7: Sample I-765 Worksheet

Appendix 8: Redacted Labor-Based Deferred Action Approval Letter