Noncitizen Workers & Deferred Action for Labor Enforcement

March 14, 2024

In 2011, the Department of Labor (DOL), in conjunction with the Department of Homeland Security (DHS), issued a memorandum known as the “DHS-DOL Worksite Enforcement Memorandum of Understanding,” in order to address protections for undocumented workers. Updates and revisions to this memo have taken place periodically over time and, most recently, in 2023 when the current administration created the program known as Deferred Action for Labor Enforcement or “DALE.” The DALE program aims to promote the fair execution of labor laws and recognizes that some employers may take advantage of workers with undocumented status.

DALE allows for undocumented noncitizens to be protected from removal by grant of a deferred action during an active investigation, provided they meet certain criteria. As a part of a 2021 memo released by the Department of Homeland Security provides, prosecution and enforcement of labor laws has seen an immense uptick and has further solidified the Department of Homeland Security’s stance that witnesses to labor investigations be given favorable discretion in deferred action requests. Such decisions are discretionary and decided solely by the Department of Homeland Security. There are no set time limits on these actions, and they are determined on a case-by-case basis. Approval of deferred action under DALE permits undocumented noncitizens the ability to file the proper and necessary immigration applications while deferring their removal from the United States, contingent on their assistance in prosecuting violations of labor laws.

Requirements for qualification of the DALE program include: (i) the Department of Labor issuing a statement of interest; (ii) a deferred action application being submitted with the U.S. Citizenship and Immigration Service (USCIS); and (iii) a work authorization application being submitted with USCIS. Typically, a labor and employment attorney will screen possible candidates with labor disputes to determine their eligibility. If eligible, they can file a request for a statement of interest with the Department of Labor, with the individual’s information and any information related to the potential case.

In determining whether to pursue a case, the Department of Labor will consider a variety of factors. These factors include: (i) the need for witnesses to participate in the investigation; (ii) whether deferred action would be in the best interest of the DOL’s investigation; (iii) whether workers are experiencing retaliation, threats, or fear for participation in enforcement; (iv) whether immigration enforcement could impede the DOL’s ability to enforce labor laws; and (v) the likelihood immigration enforcement could become an instrument to undermine labor protections.

In consideration of these factors, it is important to keep in mind that these deferred actions are privileges afforded to these individuals by the DHS and DOL and not a right owed to them. Meaning that the burden of proof is on the individual to ensure further eligibility and that additional immigration violations or other crimes will not negatively affect the outcome of the DALE application. These factors are intended to help gauge the importance and priority of an individual claim, as well as the need of the undocumented worker for deferred action.

Both the Department of Homeland Security and the Department of Labor have made clear their diligence to prosecuting infractions in labor and employment law, while protecting particularly disadvantaged groups. The DALE program was created in hopes of helping regulate these infractions while incentivizing undocumented workers to identify violations and help them to gain proper immigration paperwork.

For more information on this program, please reach out to the qualified attorneys at Rock Fusco & Connelly, LLC.