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Immigration Law Associates, PC

Victory for noncitizen workers: Deferred Action for victims of violations

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March in support of immigrants in St. Paul, Minnesota. Licensing: Flickr Public Creative Commons

On January 13, 2023, the U.S. Department of Homeland Security (DHS) announced a new policy regarding immigrants who have been victims or witnesses of a labor rights violations. These noncitizens will receive additional protection by being eligible to request deferred action in their removal proceedings.

In other words, if you are an immigrant and your employer has illegally mistreated you, you may be able to avoid being deported until justice is served. This new policy is designed to protect noncitizens from employers who seek to exploit their immigration status and threaten to “have them deported.”

The U.S. agricultural sector is fueled by immigrants. 45 percent of U.S. agricultural workers are undocumented and 86 percent of all U.S. agricultural workers were not born in the U.S.. Thus, they represent a huge sector of the American economy which is not protected by traditional labor laws. Domestic and agricultural workers were intentionally excluded from the legal requirement for overtime pay in the Fair Labor and Standards Act of 1938 (FLSA). Many corrupt agricultural employers take advantage of this vulnerable labor pool.

When we think of “deferred action” for someone’s deportation, many of us think of the Deferred Action for Childhood Arrivals (DACA) program. This program allows childhood immigrants to avoid deportation from what is often the only country they know as home, the United States. DACA was enacted under the Obama Administration and was recently codified into law under Biden’s leadership.

The DHS policy enacted this month expands the potential for deferred action, which is under DHS discretionary jurisdiction. This new policy is considered by many workers’ rights organizations to be an “unprecedented victory” for undocumented workers. However, some are concerned that implicit bias will impede impartial decision-making of DHS and ICE officials who will ultimately decide whose removal proceedings will be deferred.

Noncitizens who believe they have been victims of a labor violation should take full advantage of this new policy. If you need to submit a request for deferred action because of a labor violation, please visit the DHS website or contact us.

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