The Department of Homeland Security (DHS) has recently announced a streamlined process for foreign workers to request deferred action. Deferred action is a type of prosecutorial discretion to defer removal action (deportation) for a noncitizen for a certain time period. The new process will apply where these workers are participating in or otherwise involved an investigation or enforcement action by a federal, state, or local labor and employment agency.
DHS indicated that over 1,000 noncitizen workers "who were victims of, or witnesses to, a violation of labor rights have been protected" through deferred action over the past year. DHS has also indicated that offering deferred action to noncitizens who lack employment authorization directly will increase the ability of labor and employment agencies to "more fully investigate worksite violations." Foreign workers who are eligible for deferred action under this process may be willing to report potential violations of law by employers or cooperate in employment and labor investigations.
Through this streamlined process, U.S. Citizenship and Immigration Services (USCIS) will process these requests for deferred action by foreign workers who are participating in investigations on a case-by-case basis. Eligible foreign workers can request deferred action for a period of up to two years through this process, and they may make subsequent requests for deferred action for an additional period of time where a labor agency provides support for the request based on the agency's investigative or enforcement interests. The foreign worker may also be granted employment authorization along with deferred action through this process.
It should be noted that there are also nonimmigrant status types (visas) for which victims of certain crimes may be eligible, e.g., U and T visas for victims of certain crimes and victims of human trafficking, respectively. There has also been proposed legislation related to protections for H-2B non-agricultural temporary workers and other foreign workers who suffer mental, physical, and emotional abuse related to labor and employment violations. We will continue to monitor these developments.
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