Yesterday, the Department of Homeland Security (DHS) extended the grant period for Deferred Action for Labor Enforcement (DALE) from two years to four years. For noncitizens who received a two year period of deferred action and EAD, DHS outlines a process for the noncitizens to request an increase of the initial grant period from two to four years (See DHS’s webpage, FAQ #22). While DHS updated policies on its webpage and did not issue a formal announcement, the strengthening of DALE is a momentous milestone - both a testament to continued organizing of labor advocates and an affirmation of labor and immigration agencies’ commitment to DALE’s policy goals.
What is DALE?
On January 13, 2023, DHS announced a process to streamline worker access to deferred action. Applicants, if approved, receive a work permit and temporary protection from deportation for two years. This policy promotes fairness, safety, and a level playing field for all U.S. workers by strengthening labor agencies’ ability to enforce labor and employment standards. This relief is often referred to as Deferred Action for Labor Enforcement or DALE (pronounced “DAH-leh”). In Spanish, “¡dale!” is an interjection that loosely translates to “go ahead!” or “let’s go,” and the reference is apt because DALE encourages noncitizen workers to stand up for their workplace rights by temporarily protecting them from immigration consequences. With DHS’s update extending DALE protections, it is time for immigrant defenders to go ahead (¡dale!) on DALE.
Strategic Enforcement: The Policy Objective Behind DALE
DALE is a tool for both labor and employment agencies, such as the Department of Labor (DOL), and DHS to conserve limited resources and focus on certain enforcement priorities within each agency’s mission.
Federal labor agencies have institutional missions (as defined by Congress) to enforce labor laws and regulations. Since labor agencies have limited resources and cannot address every labor violation, agencies must be proactive and rigorously selective on where to focus their enforcement efforts. Similarly, in Texas v. United States, the Supreme Court affirmed DHS’s discretion to create priorities in immigration enforcement. The DHS’s 2023 announcement of DALE builds on DHS’s long-standing discretionary policy to grant temporary protection to witnesses or potential witnesses in a labor or civil rights investigation. Since the 1990s, DHS (then called Immigration and Naturalization Services) and federal labor agencies have had memoranda of understanding (MOU) to align policies that encourage immigrant workers to file complaints against abusive employers without fear of immigration retaliation. In a 2011 MOU, DHS stated that prosecutorial discretion aimed “to minimize any effect that immigration enforcement may have on the willingness and ability of victims, witnesses, and plaintiffs to report to police and seek justice.” This MOU named prosecutorial discretion as a tool to protect workers as potential witnesses and complainants, and to uphold the right of workers to exercise their labor rights, such as collective bargaining, and to report discrimination. A 2016 addendum reinforced the importance of DOL-DHS interagency coordination to make sure “respective civil worksite enforcement activities do not conflict and are not manipulated by third parties . . .”, i.e., unscrupulous employers using the threat of deportation as a retaliatory tool against workers and misusing DOL & DHS resources. This addendum added new signatures and explained the enforcement authority of two more agencies: the Equal Employment Opportunity Commission (EEOC) and National Labor Relations Board (NLRB). DHS has also issued various memoranda reinforcing a victim-centered approach where workers, tenants, crime victims, and others should be important mitigating factors.
DALE in Action: Centering the Stories of Immigrant Workers, Benefiting All Workers and the Economy
Noncitizen workers, especially undocumented workers, are among the most vulnerable and exploited workers. The unscrupulous employers exploiting the industries’ most vulnerable workers impact all workers. When an employer pays a noncitizen worker substandard wages, this not only impoverishes the individual workers and their families, but also creates an unfair labor market and disadvantages competitors who abide by the law. When an employer threatens workers with deportation and workplace raids occur, there is a chilling effect on the workers’ exercise of their civil and labor rights. On the flip side, when workers campaign against the employers and hold employers accountable, the organizing itself can bring together workers across states, industries, and racial/ethnic backgrounds. All workers benefit from the better working conditions and wages achieved through organizing.
Case Study: Unforgettable Coatings
As one example, in 2023, the former employees of Unforgettable Coatings won a settlement of $3.68 million for stolen wages, penalties, damages and interest. Workers began reporting wage theft and retaliation from the painting company to DOL in 2019. Workers like Rosario Ortiz, Jonas Reyes, and Samuel Castillo Dubon were among the first undocumented workers under the Biden administration to publicly discuss immigration protections. The DOL investigation benefited from cooperating with the local district of the International Union of Painters and Allied Trades and Arriba Las Vegas Worker Center, investigating a period of four years of unpaid overtime compensation. Since the abusive employer conducted business in Nevada, Arizona, Idaho, and Utah, workers from all four of these states would benefit from an employer held accountable to pay its workers their hard-earned wages.
This is just one example of how DALE is an enforcement tool for workers, union and non-union, to organize multi-state campaigns against unscrupulous employers. Across the United States, workers have organized by industry and regions (e.g. food processing plants in Minnesota, poultry processing plants in Mississippi), and/or around specific labor violations (e.g., wage theft, child labor, and workplace safety protections). Recently, California workers successfully argued that immigrants detained at California’s Golden State Annex detention center were the center’s “employees,” and therefore entitled to certain workplace safety and health protections. California’s Division of Occupational Safety and Health issued a Statement of Interest, the first of its kind nationwide for detained workers. This investigation exposed what workers long stated: they cannot be safe from retaliation while in civil detention.
Local labor agencies have also led the way in strategic enforcement. Though not required, state and local attorney generals have discretion to apply DALE as an investigatory tool, and issue statements of interest to locate and protect noncitizen worker-witnesses, and conduct more efficient and more large-scale/large-impact investigations.
State and local labor agencies and attorney generals have even collaborated across states to voice their support for DALE’s importance in their labor-related investigations. On July 2, 2024, 27 state and local agencies, including the Illinois and Massachusetts State Attorneys General, and Seattle Office of Labor Standards, sent a letter to DHS requesting DHS to extend deferred action protection to protect noncitizen victims and witnesses of labor violations from deportation for four years.
DALE may have taken different forms over the years since the 1990s, but ultimately the objective is the same. DALE is both an enforcement tool and organizing tool that keeps worker justice, dignity, and fairness as its north star, and holds accountable bad-acting employers. In the process, DALE is a call to advocates to forge and strengthen new bonds across sectors, across geographies, and across affiliations.
In the short time since DHS announced the DALE process, there has been a high approval rate of DALE applications. Because of a dedicated USCIS mailbox for DALE applications, workers generally receive deferred action and work permits within four to six months. With no criminal bars to the application, practitioners can creatively demonstrate applicant’s positive equities. To date, there have been no reported DHS enforcement actions against DALE applicants.
DALE in Immigration Practice
DALE can factor into the case strategy in an immigration practitioner’s law practice. More labor agencies, like OSHA, can now certify for U or T nonimmigrant status, a permanent form of relief for workers who were victims of labor-related crimes or trafficking. Based on new EOIR rules on administrative closure and termination, DALE applicants in removal proceedings can request that immigration judges to terminate, dismiss, administratively close, or continue proceedings based on deferred action.
Some noncitizen workers may apply for parole in place (PIP) based on the ongoing labor investigation. DHS Worksite Enforcement Memorandum 065-06 directs DHS agencies to assist DOL to enforce "wage protections, workplace safety, labor rights, and other laws" by using prosecutorial discretion, including the "consideration of deferred action . . . parole, and other available relief for noncitizens who are witnesses to, or victims of, abusive and exploitative labor practices." A grant of parole allows an individual to remain lawfully in the United States for a certain period of time. For applicants trying to adjust status based on family petitions, a common barrier is the accrual of unlawful presence, whether being in the U.S. “without being admitted or paroled” or not in a period of “authorized stay.” To overcome unlawful presence, applicants usually apply for a provisional waiver (Form I-601A), which requires applicants to show “extreme” hardship to certain family member petitioners, and for the applicants to leave the U.S., interview at a U.S. consulate in their home country, and re-enter the U.S only when a waiver is approved. Labor-based PIP, and parole in general, can be a more practical alternative to the I-601A waiver process if applicants do not find it safe or practical to leave the U.S. Labor-based PIP is one type of parole that DHS has the authority to grant, and slightly different from other parole programs like military-based PIP or the parole program that President Biden announced in June 2024 for certain noncitizen spouses of U.S. citizens.
The National Immigration Project applauds DHS and DOL for continuing to affirm the importance of DALE as an enforcement tool, as reflected by DHS’s January 17, 2024 guidance on the process for deferred action renewals and July 22, 2024 update that deferred action grants are now extended from two years to four years. Knowing that DALE will protect workers for four years will motivate noncitizen workers to speak up and call out exploitative employers who harm our entire society. Whether noncitizen workers take that step to apply for DALE depends on us immigrant defenders to educate and represent them on this process.
For more resources on the DALE application process, see our Practice Manual on DALE, a collaboration with National Immigration Law Center, Tulane University Immigrant Rights Clinic and Organized Power in Numbers (formerly Unemployed Workers United). Stay tuned for an updated practice manual.
For community explainers on the DALE application process in English and nine other languages, see here