DHS Support of the Enforcement of Labor and Employment Laws

Multiple mechanisms in our immigration laws can provide employment authorization to noncitizen workers and protect them from removal, including discretionary relief such as deferred action or parole in place and other forms of relief such as T and U nonimmigrant visas. There are also circumstances where a labor or employment agency may request expedited processing of a noncitizen’s pending application, petition, or request.

A. Initial Requests for Deferred Action:

Labor and employment agencies can seek DHS support in an ongoing investigation or enforcement action by providing workers with a Statement of Interest that must be included as part of the noncitizen’s request for deferred action. The Statement of Interest must:

• Be addressed to the Department of Homeland Security;
• Detail the nature of the labor or employment agency’s investigation or enforcement action and the need for DHS support;
• Describe the agency’s enforcement interests that provide the basis for their request;
• Describe the worksite and the workers who may be helpful with the agency investigation or enforcement action; and
• Provide an agency point of contact who can address follow up questions from DHS.

Labor agencies must submit a courtesy copy of any Statement of Interest to laborenforcement@dhs.gov. After providing a courtesy copy of the Statement of Interest to DHS, labor agencies can then provide workers with this Statement of Interest, which must be included with the noncitizen’s prospective request to DHS for deferred action.

Labor agencies submitting a Statement of Interest for the first time or that have questions about the process are encouraged to seek technical assistance prior to submission. To request such assistance, please contact laborenforcement@dhs.gov.

B. Subsequent Requests for Deferred Action:

A noncitizen granted deferred action based on a labor agency enforcement interest may request a subsequent period of deferred action for an additional two years when there continues to be an ongoing labor agency need. Subsequent requests must be accompanied by an updated Statement of Interest from the labor agency explaining the continued need for workers to assist in their investigation or prosecution, or in the enforcement of any court order or settlement agreement. The updated Statement of Interest must include the required details listed above, and also describe the scope of workers who are in need of continued protection based on the procedural posture of the labor agency’s investigation, prosecution, or enforcement actions.

Labor agencies must submit a courtesy copy of any updated Statement of Interest to laborenforcement@dhs.gov. After providing a courtesy copy of any Statement of Interest to DHS, labor agencies can then provide workers with this Statement of Interest, which must be included with the noncitizen’s prospective, subsequent request to DHS for deferred action.

C. Expedited Requests for Deferred Action:

In addition, labor agencies can seek expedited processing of a noncitizen’s pending immigration benefit request, such as an application for a change or adjustment of status. Such requests must be made by a senior-level agency official. If the request relates to employment authorization, the request should demonstrate that the need for a person to be employment-authorized is mission-critical and goes beyond a general need to retain a particular worker or person. Examples include, but are not limited to, a noncitizen victim or witness cooperating with a federal, state, or local agency who is in need of employment authorization because the respective agency is seeking back pay or reinstatement in an enforcement action or other court proceeding.

Click here for the full size infographic | Solicitudes De Acción Diferida Para Trabajadores En Apoyo De Investigaciones De Agencias Laborales

Deferred action is a form of prosecutorial discretion to defer removal action against a noncitizen for a certain period of time. Although deferred action does not confer lawful status or excuse any past or future periods of unlawful presence, a noncitizen granted deferred action is considered lawfully present in the United States for certain limited purposes while the deferred action is in effect. DHS can terminate deferred action at any time, at its discretion.
Under existing regulations, a noncitizen granted deferred action may apply for and obtain employment authorization for the period of deferred action if they demonstrate “an economic necessity for employment.”

Noncitizen workers who fall within the scope of a labor agency investigation can submit their requests for deferred action to USCIS through a central intake point specifically established to handle requests for deferred action related to labor agency investigative efforts. USCIS will forward to U.S. Immigration and Customs Enforcement (ICE) any requests for deferred action from noncitizens who are in removal proceedings or have a final order of removal, so ICE can consider the request for deferred action.

As with any request for deferred action, DHS will review requests based on a labor agency investigation on a case-by-case basis. DHS will review all positive and negative factors when considering whether to exercise discretion to grant deferred action.

Subsection: Initial Requests:

To request deferred action under this centralized intake process, noncitizen requestors must submit the following:

• A written request signed by the noncitizen stating the basis for the deferred action request;
• A Statement of Interest from a labor or employment agency addressed to DHS supporting the request;
• Evidence to establish that the noncitizen falls within the scope of workers specified in the Statement of Interest, such as W-2s, pay stubs, time cards, and/or other documentary evidence such as a signed affidavit to demonstrate that the noncitizen was employed during the period identified in the labor or employment agency statement;
• Evidence of any additional factors supporting a favorable exercise of discretion;
• Proof of the noncitizen’s identity and nationality;
• If applicable, any document used to lawfully enter the United States or other evidence relating to the noncitizen’s immigration history or status;
• Form G-325A, Biographic Information (for Deferred Action);
• Form I-765, Application for Employment Authorization, with the appropriate fee or request for a fee waiver; and
• Form I-765WS, Worksheet.

If deferred action is granted through this process, the period of deferred action and employment authorization will generally be for a period up to four years.

Attorneys who are submitting deferred action requests for multiple noncitizens should submit each individual request in its own, separate envelope.

If a noncitizen is unable to pay the Form I-765 filing fee, they must file Form I-912, Request for a Fee Waiver. Additional information is available on the fee waiver page. Submit all of these materials to:

USCIS
Attn: Deferred Action – Labor Investigations
10 Application Way
Montclair, CA 91763-1350

Subsection: Subsequent Requests:

To submit a subsequent request for deferred action for an additional period of up to two years based on a labor agency investigation or need, noncitizen requestors must submit the following:

• A written request signed by the noncitizen stating the basis for the deferred action request, including the continued need of the labor or employment agency;
• An updated Statement of Interest from a labor or employment agency addressed to DHS supporting the request;
• Evidence to establish that the noncitizen falls within the scope identified in the Statement of Interest, such as W-2s, pay stubs, time cards, and/or other documentary evidence such as a signed affidavit to demonstrate that the noncitizen was employed during the period specified in the labor or employment agency statement;
• Evidence of any additional factors supporting a favorable exercise of discretion, which may include evidence of the noncitizen’s past participation or willingness to actively participate in the labor agency investigation;
• Proof of the noncitizen’s identity and nationality;
• If applicable, any document used to lawfully enter the United States or other evidence relating to the noncitizen’s immigration history or status;
• Form G-325A, Biographic Information (for Deferred Action);
• Form I-765, Application for Employment Authorization, with the appropriate fee or request for a fee waiver; and
• Form I-765WS, Worksheet.

 

Subsequent requests, if granted, will generally be for an additional period of up to two years.

If you are unable to pay the Form I-765 filing fee, you must file Form I-912, Request for a Fee Waiver. Additional information is available on the fee waiver page. Submit all of these materials to:

USCIS
Attn: Deferred Action – Labor Investigations 
10 Application Way
Montclair, CA 91763-1350

Subsection: Replacement Employment Authorization Documents:

• To request a replacement EAD due to the EAD being lost, stolen or damaged, please see the “Deferred Action” section on https://www.uscis.gov/i-765-addresses to submit Form I-765 and applicable fees. 
• To request a replacement EAD due to an error on the card, please see the “Replacement for Card Error” section on: https://www.uscis.gov/i-765-addresses. There is separate guidance for:

• If a noncitizen needs to replace a card USCIS issued because it contains incorrect information that is not due to a USCIS error.
• If a noncitizen needs to replace a card USCIS issued because it contains incorrect information that is due to a USCIS error.

1. What is deferred action?

Deferred action is a form of prosecutorial discretion to defer removal action (deportation) against a noncitizen for a certain period of time. Although deferred action does not confer lawful status or excuse any past or future periods of unlawful presence, a noncitizen granted deferred action is considered lawfully present in the United States for certain limited purposes, while the deferred action is in effect. If granted deferred action, a noncitizen may be eligible for employment authorization. DHS can terminate deferred action at any time, at its discretion.

2. Has DHS already granted deferred action to noncitizens who are participating in labor agency investigations?

Yes. DHS grants deferred action to noncitizen workers on a case-by-case basis at its discretion.

3. How does the centralized deferred action process work?

A noncitizen requesting deferred action based on a labor agency investigation or need submits a written request for deferred action by submitting:

• A request for deferred action signed by the noncitizen which describes the basis for their request for deferred action;
• A Statement of Interest from a labor or employment agency addressed to DHS supporting the request;
• Evidence to establish that the worker falls within the category of workers identified in the Statement of Interest, such as W-2s, pay stubs, time cards, and/or other documentary evidence such as a signed affidavit to demonstrate that the worker was employed during the period specified in the labor or employment agency statement;
• Evidence of any additional factors supporting a favorable exercise of discretion;
• Proof of the noncitizen’s identity and nationality;
• If applicable, any document used to lawfully enter the U.S. or other evidence relating to the noncitizen’s immigration history or status;
• Form G-325A, Biographic Information (for Deferred Action);
• Form I-765, Application for Employment Authorization, with the applicable, non-refundable fee;
• Form I-765WS, Worksheet; and
• Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, if applicable.

The noncitizen will submit this request to:

USCIS
Attn: Deferred Action – Labor Investigations 
10 Application Way
Montclair, CA 91763-1350

Attorneys who are submitting deferred action requests for multiple noncitizens should submit each individual application in its own envelope.

USCIS will refer to ICE any deferred action requests that fall within ICE’s authority, including requests submitted by noncitizens who are in removal proceedings or have a final order of removal.

As with any request for deferred action, DHS will review requests by noncitizens based on a labor agency investigation or need on a case-by-case basis. DHS will review all positive and negative factors present in the requestor’s case when considering whether to exercise discretion to grant deferred action.

If deferred action is granted through this process, the initial period of deferred action and employment authorization will generally be for a period up to four years.

4. Can a noncitizen worker who would otherwise fit within the scope of a labor-related request for prosecutorial discretion described in this FAQ but who does not want to submit a Form I-765, Application for Employment Authorization, request deferred action?

Yes. A noncitizen worker who falls within the scope of a labor agency investigation but who does not want to submit a Form I-765, Application for Employment Authorization, may request deferred action by submitting their request in accordance with the general instructions for requesting deferred action.

5. May a noncitizen granted deferred action be eligible for employment authorization?

Individuals granted deferred action may be eligible for employment authorization under existing regulations at 8 C.F.R. 274a.12(c)(14), which require them to demonstrate an economic necessity for employment. Noncitizens submitting a deferred action request through this centralized process must concurrently submit their Form I-765, Application for Employment Authorization, with the appropriate fee, if they are requesting employment authorization. If DHS grants deferred action, we will then adjudicate the Form I-765. Note that if DHS does not grant deferred action, we will not refund or return the Form I-765 fee. If the requestor does not want to file Form I-765 with their deferred action request, they can send their Form I-765 by following USCIS' standard procedure.

6. What agency will be reviewing requests for deferred action from noncitizen workers?

Requests for deferred action made by noncitizen workers who are participating in or otherwise necessary to a labor agency investigation should be submitted to USCIS through the central intake point specifically established to support labor agency investigative efforts for deferred action requests. USCIS will review the request, as well as the noncitizen’s immigration history, to determine which office within DHS has authority over the request. Upon reviewing the submission for completeness, USCIS will only forward to 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.

7. If deferred action is granted through this process, when does it end?

If deferred action is approved, it may be granted generally for an initial period of up to four years, subject to termination at any time. The recipient may also be eligible to submit a subsequent request for deferred action (see question 14 below), 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. Subsequent requests if granted, based on a labor agency investigation or need, will generally be for an additional period up to two years.

8. What other immigration benefits can a noncitizen worker pursue if they are not granted deferred action?

A noncitizen worker who is the victim of a crime or subject to exploitation by an unscrupulous employer and cooperating in a labor agency investigation may be eligible for other forms of immigration relief beyond deferred action, including eligibility for a T or U nonimmigrant visa or parole in place.

9. How can a labor agency find out more about this process?

Labor agency representatives can contact laborenforcement@dhs.gov to learn more about this process and request technical assistance.

10. When can the labor agency distribute the Statement of Interest to workers to submit as part of their deferred action request?

Labor agencies must provide a courtesy copy of the Statement of Interest to laborenforcement@dhs.gov before providing the Statement of Interest to any workers.  Once they have provided a courtesy copy, labor agencies can provide the Statement of Interest to the worker, who must include the Statement of Interest in their request for deferred action. Labor agencies submitting a Statement of Interest for the first time or that have questions about the process are encouraged to seek technical assistance prior to submission. For such assistance, please e-mail laborenforcement@dhs.gov.

11. Will I receive a Social Security Number?

When a noncitizen files Form I-765, Application for Employment Authorization, they can apply for a Social Security Number (SSN) on the same form. If USCIS approves their application to work in the U.S. and the noncitizen completed the section on the application to request an SSN card, then USCIS will send the Social Security Administration (SSA) the data needed to issue the noncitizen an SSN card.

If USCIS approves Form I-765, the noncitizen will receive two documents – their Employment Authorization Document (EAD), also known as the “USCIS I-766 card” or “work permit”, and in another envelope their SSN card.  The SSA will mail the SSN card to the address the noncitizen listed on their I-765 application.  The noncitizen should receive their SSN card no later than 7 business days after they receive their EAD from USCIS.

If a noncitizen does not receive their SSN card within 7 business days after receiving their EAD, they should call or visit an SSA office. For more information, please review this flyer.

 

12. Will DHS consider a request submitted by a labor or employment agency to expedite a noncitizen’s pending immigration benefit request on the basis of a labor agency’s need?

Yes. On a case-by-case basis, USCIS will consider a request submitted by a senior-level official of the labor or employment agency for expedited processing of a noncitizen’s pending immigration benefit request, including but not limited to Form I-765, Application for Employment Authorization, submitted outside of a request for labor investigation-based deferred action under the centralized intake process, Form I-485, Application to Register Permanent Residence or Adjust Status, Form I-130, Petition for Alien Relative, U Bona Fide Determination, or other pending immigration benefit request.

If the expedite request relates to employment authorization, the request should demonstrate a critical and otherwise compelling need for a person to be employment authorized. Examples include, but are not limited to, a noncitizen victim or witness cooperating with a federal, state, or local agency who is in need of employment authorization because the respective agency is seeking back pay or reinstatement in an enforcement action or other court proceeding. More information on how to request expedited processing can be found on the How to Make an Expedite Request page.

13. How does a noncitizen submit a request for a replacement Employment Authorization Document (EAD)?

A. To request a replacement EAD due to the EAD being lost, stolen or damaged, please see the “Deferred Action” section on https://www.uscis.gov/i-765-addresses to submit Form I-765 and applicable fees. 

B. To request a replacement EAD due to an error on the card, please see the “Replacement for Card Error” section on: https://www.uscis.gov/i-765-addresses. There is separate guidance for:

• If a noncitizen needs to replace a card USCIS issued because it contains incorrect information that is not due to a USCIS error.
• If a noncitizen needs to replace a card USCIS issued because it contains incorrect information that is due to a USCIS error.

14. Can a noncitizen request subsequent periods of deferred action based on a labor agency investigation or need?

Yes. A noncitizen granted deferred action based on a labor agency investigation or need may request an additional two-year period of deferred action when there continues to be a labor agency need. Subsequent requests for deferred action based on a labor agency investigation or need must be accompanied by an updated labor agency Statement of Interest explaining the continued labor agency need. The Statement of Interest must also describe the scope of workers who are in need of protection based on the procedural posture of the labor agency’s investigation, prosecution, or enforcement action.

15. How can a labor agency submit an updated Statement of Interest in support of a subsequent request for deferred action?

A labor agency that has a continued need for workers to help in their investigation or prosecution of a case, or any related enforcement action, may support a noncitizen’s subsequent request for deferred action by providing an updated Statement of Interest.  The labor agency should make an assessment of the continuing need for worker participation and should reassess the scope of workers in need of protection based on the phase of the agency’s enforcement effort at that time.

Labor agencies must provide workers with this updated Statement of Interest, which must be included as part of the noncitizen’s subsequent request for deferred action. Labor agencies must submit a courtesy copy of the Statement of Interest to laborenforcement@dhs.gov before providing the Statement of Interest to any workers.

16. How does a noncitizen request a subsequent period of deferred action based on a labor agency investigation or need?

A noncitizen requesting a subsequent period of deferred action based on a labor agency investigation or need must submit:

• A written request signed by the noncitizen stating basis for the deferred action request, including the continued need of the labor or employment agency;
• A Statement of Interest from a labor or employment agency addressed to DHS supporting the request;
• Evidence to establish that the worker falls within the scope specified in the Statement of Interest, such as W-2s, pay stubs, time cards, and/or other documentary evidence including a signed affidavit to demonstrate that the worker was employed during the period identified in the labor or employment agency statement
• Evidence of any additional factors supporting a favorable exercise of discretion, which may include evidence of the worker’s past participation or willingness to actively participate in the labor agency investigation;
• Proof of the noncitizen’s identity and nationality;
• If applicable, any document used to lawfully enter the United States and/or other evidence relating to the noncitizen’s immigration history or status;
• Form G-325A, Biographic Information (for Deferred Action);
• Form I-765, Application for Employment Authorization, with the appropriate fee or request for a fee waiver; and
• Form I-765WS, Worksheet.

If a noncitizen is unable to pay the Form I-765 filing fee, they must file Form I-912, Request for a Fee Waiver. Additional information is available on the fee waiver page.

The noncitizen will submit this request to:

USCIS
Attn: Deferred Action – Labor Investigations
10 Application Way
Montclair, CA 91763-1350

Attorneys who are submitting deferred action requests for multiple noncitizens should submit each individual application in its own envelope.

USCIS will refer to ICE any requests for deferred action that fall within ICE’s authority, including requests submitted by noncitizens who are in removal proceedings or have a final order of removal.

As with any request for deferred action, DHS will review requests for a subsequent period of deferred action based on a labor agency investigation or need on a case-by-case basis. DHS will review all positive and negative factors present in the requestor’s case when considering whether to exercise discretion to grant a subsequent period of deferred action. If granted, the subsequent period of deferred action will generally be for a period up to two years, subject to termination at any time at the discretion of DHS.

17. When can a noncitizen submit their subsequent request for deferred action?

Noncitizens should submit any subsequent request for deferred action to DHS at least 120 days but no more than 180 days prior to the expiration of the current period of deferred action. Before submitting a subsequent request for deferred action, noncitizens should obtain an updated Statement of Interest from the labor agency and include the updated Statement of Interest with the subsequent request for deferred action to DHS.

Please note that if a subsequent request for deferred action is received by DHS with less than 120 days remaining in the current period of deferred action, there could be a gap between periods of deferred action and related employment authorization.

18. If a noncitizen’s request for a subsequent period of deferred action is granted, when will the new period of deferred action begin?

• If a noncitizen submits a request for a subsequent period of deferred action to DHS at least 120 days before and no more than 180 days prior to the expiration of their current period of deferred action and the request is granted, the noncitizen will generally receive deferred action and employment authorization for a period up to two years starting from the expiration date of the current period of deferred action.
• If a noncitizen submits a request for a subsequent period of deferred action less than 120 days prior to the expiration of their current period of deferred action and the request is granted, there may be a gap between periods of deferred action and related employment authorization.
• If a noncitizen submits a request for a subsequent period of deferred action after the expiration date of their current period of deferred action and the subsequent request is granted, the noncitizen will have a lapse in the duration of their deferred action period and related employment authorization.  In such instances, the noncitizen will generally receive deferred action and employment authorization for a period up to two years from the grant date of the new request.

19. Will noncitizens who apply for deferred action based on a labor agency investigation or need through this process be referred to ICE for enforcement action?

Through the centralized intake process, USCIS will forward to ICE only those requests for deferred action from noncitizens who are in removal proceedings already or who have a final order of removal, so that ICE can consider the request for deferred action. All other requests will be processed by USCIS. Consistent with all USCIS adjudications, USCIS generally will not refer cases to ICE post-decision absent national security public safety, and border security concerns.

20. Can a noncitizen currently present in the United States on a nonimmigrant visa (such as H-2) who falls within the scope of a labor agency investigation request labor investigation-based deferred action through the centralized process?  

Yes. A noncitizen worker who is present in the United States on a nonimmigrant visa (such as H-2) and who falls within the scope of a labor agency investigation can request labor investigation-based deferred action through the centralized process. The worker should indicate in their written request for deferred action their current immigration status and the expiration date of that status, while also providing a copy of their Form I-94, Arrival/Departure Record, reflecting that status. This will facilitate timely processing of the deferred action request and minimize the risk of gaps in employment authorization or accrual of unlawful presence. 

21. How do I withdraw my pending request for labor investigation-based deferred action and employment authorization? 

To withdraw a pending request for labor investigation-based deferred action and employment authorization, a noncitizen must submit a written withdrawal request with their name, signature, A#, and the receipt number listed on their Form I-797C, Notice of Action. The written withdrawal request should indicate that the noncitizen is are withdrawing their request for deferred action and employment authorization.

Withdrawal requests should be submitted to:

USCIS
Attn: Deferred Action – Labor Investigations – Withdrawal
10 Application Way
Montclair, CA 91763-1350

Please note that if a noncitizen withdraws their pending request, they will not receive a refund of any fees paid for their application for employment authorization. All withdrawals are final and may not be retracted. However, withdrawing a pending request will not bar the noncitizen from requesting deferred action in the future.

22: Can a noncitizen initially granted a two year period of deferred action and related employment authorization request an increase of the initial grant period from two to four years?

Yes. To request that the initial period of deferred action and related employment authorization be increased from two to four years, a noncitizen should submit the following to the address listed in Question 3 above:

• Form G-325A, Biographic Information (for Deferred Action). Please write “Labor DA Extension” on the top portion of the form.
• A written request signed by the noncitizen stating the desire to increase the deferred action period from two to four years;
• Proof of the noncitizen’s identity and nationality;
• The Statement of Interest from a labor or employment agency that supported the initial deferred action request;
• A copy of the approval notice from the initial deferred action request;
• Form I-765, Application for Employment Authorization, with the appropriate fee or request for a fee waiver; and
• Form I-765WS, Worksheet.

If a noncitizen is unable to pay the Form I-765 filing fee, they must file Form I-912, Request for a Fee Waiver.

If granted, the period of deferred action, and related employment authorization, will generally be up to a total of four years from the date of the initial grant of deferred action.

23. A noncitizen was initially granted deferred action for a period of two years. If the noncitizen submits a request to increase their initial deferred action time period from two years to four years, are they required to replace their employment authorization card to reflect a total of four years of validity?  

Yes.  Extending the initial authorized period of deferred action from two years to four years does not automatically extend the validity period of employment authorization. To remain employment authorized for the duration of their deferred action, a noncitizen must file a new I-765 and I-765 WS with fee or request for a fee waiver. If the noncitizen does not submit the I-765 and I-765WS with their request to extend the initial deferred action period from two years to four years, this may result in additional processing delays, denials, and loss of employment authorization.

24. If a noncitizen was granted a two-year subsequent period of deferred action, can they request that the period be increased to four years?

No. If a noncitizen requested and were granted a subsequent period of deferred action, they have already obtained an initial two-year period and a subsequent two-year period for a total of four years. If there is a labor agency need beyond the four-year period of deferred action that the noncitizen has already obtained, the labor agency may issue a new Statement of Interest and the noncitizen may request another subsequent period of deferred action on that basis.