Support for Worker Requests for Immigration-Related Prosecutorial Discretion - FAQs - Employment Standards Service (ESS)

The Maryland Department of Labor, Division of Labor and Industry (DLI) enforces labor laws to promote economic justice and ensure workplace rights throughout the State. Effective investigation of complaints and enforcement of workers’ rights depends on the cooperation of all workers regardless of immigration status. DLI enforces workplace laws and protects workers’ rights regardless of the immigration status of the affected workers. DLI does not enforce immigration laws. DLI does not ask about a worker’s immigration status, and DLI works to ensure that all workers in Maryland are protected at work regardless of immigration status.

Undocumented or immigrant workers may fear providing information to governmental officials because they are afraid that it will lead to deportation or arrest. To address this fear and ensure appropriate enforcement of labor laws, DLI has developed a process to support workers who request that DLI submit a Statement of Interest during an active DLI investigation or enforcement action to the U.S. Department of Homeland Security (DHS) in support of a worker’s request to DHS for immigration-related prosecutorial discretion, including deferred action and work authorization from DHS.

1. What is immigration-related “prosecutorial discretion”?
Due to the volume of immigration violations within its jurisdiction, DHS exercises prosecutorial discretion to determine if or when to pursue removal (deportation) of immigrants. DHS may exercise prosecutorial discretion at any step in the immigration process, such as deciding whom to detain or release or deciding whether to settle or dismiss a case. One type of prosecutorial discretion is called “deferred action.” Although deferred action does not confer lawful status, a noncitizen granted deferred action is considered lawfully present in the United States for certain limited purposes and may be eligible for work authorization.

An immigration attorney can help you decide if prosecutorial discretion or other forms of immigration relief may help you. (See #13 below.)

2. What is “deferred action” for workers?
Deferred action is a discretionary determination by DHS to defer the deportation or removal of an individual. On January 13, 2023, DHS announced that it would consider applications for deferred action from immigrant workers if they meet the following criteria:

1. The workers are victims or witnesses in a labor/workplace dispute;
2. The dispute is being investigated by a federal, state, or local labor agency; and
3. The labor agency has provided a letter or statement of interest.

3. Does DLI support requests for prosecutorial discretion for workers involved in DLI cases?
Yes. DLI may submit a “Statement of Interest” to DHS if DLI is engaged in an active investigation or enforcement action. DLI will consider requests on a case-by-case basis for a Statement of Interest where any part of DLI is enforcing a labor or employment law against your employer. Cases will be considered where there is a fear of immigration-related retaliation that might deter workers from cooperating with an DLI investigation or enforcement action. DLI will typically submit a Statement of Interest for an entire worksite and not name individual workers.

4. How do I ask DLI for a Statement of Interest in support of my request that DHS grant deferred action?
If you believe DLI has an active investigation or enforcement action against your employer, you can send the request to dldliemploymentstandards-dllr@maryland.gov with the subject line, “Request for Statement of Interest.” An active investigation or enforcement action refers to a complaint or allegation of a violation of law that DLI is investigating or enforcing through administrative appeals or in court against your employer. Closed cases will not qualify. A request may be made by a worker, advocate, or representative. Requests may also be made on behalf of a group of workers. Requests should include as much of the following information as possible:

• Name and address of the employer;
• Worksite address(es);
• DLI case number and the name of the assigned DLI investigator, if known;
• A brief description of the case and the impact of the violations on workers;
• A description of any retaliation or threats (or fear of such) workers at the worksite may have witnessed or experienced related to labor disputes or violations and/or immigration status;
• A contact person who can respond to follow-up questions from DLI.

5. After I submit my request to DLI for a Statement of Interest, what will DLI do?
DLI will decide on a case-by-case basis whether to submit a Statement of Interest to support a request for prosecutorial discretion to DHS and may contact the requester or their representative for more information. If DLI decides to support the request, DLI will send DHS the Statement of Interest and provide the requester or their representative with a copy of the Statement once it has been accepted by DHS. DLI never communicates with your employer about your request.

6. What happens if DLI declines to submit a Statement of Interest?
If DLI decides not to submit a Statement of Interest to DHS, DLI will inform the requester or their representative in a timely manner. Statements of Interest are wholly discretionary and decided on a case-by-case basis. If DLI decides not to provide a Statement of Interest, DLI will not communicate with DHS about the request. A decision not to submit a Statement of Interest will not affect DLI’s labor investigation or enforcement action.

7. Does submission of a Statement of Interest by DLI provide any immigration status or protection to a worker?
No. A submission by DLI of a Statement of Interest to DHS does not provide immigration status, nor any specific immigration protection, to individual workers. Instead, an individual worker must independently request deferred action from DHS directly and include DLI’s submission of a Statement of Interest as part of that request.

All applications are mailed to the U.S. Citizenship and Immigration Services and there is a list of applications that must be completed available on its website.

8. Does the submission of an DLI Statement of Interest guarantee that DHS will approve deferred action in a particular case?
No. DHS exercises sole discretion in deciding whether to exercise immigration-related prosecutorial discretion. The submission of a statement of interest from DLI does not guarantee that DHS will grant prosecutorial discretion in any individual case.

9. Will DLI seek prosecutorial discretion for me?
No. DLI’s role is limited to supporting workers’ requests for prosecutorial discretion by submitting a Statement of Interest explaining why the exercise of discretion in a particular case would aid DLI’s active investigation or enforcement action. Individual workers, or their advocates or representatives, must request that DHS exercise its prosecutorial discretion by granting deferred action. View more information on how to request prosecutorial discretion from DHS. Each worker should consider having a complete screening from an experienced immigration attorney to better understand their eligibility and the implications of submitting a request for prosecutorial discretion to DHS. Below (See #13 below)has information about how you can find pro bono (free) legal service providers.

10. Will DLI keep the information contained in a request confidential?
In keeping with DLI’s standard practices, to the greatest extent permitted by law, DLI will keep requests for a Statement of Interest confidential. DLI will share Statements of Interest with DHS, but such Statements typically will not contain any personally identifiable information of any individual, such as names, birth dates, etc., without their prior permission and notification.

11. Can DLI provide a Statement of Interest to DHS without receiving a request?
Yes. Where appropriate, DLI can submit a Statement of Interest regarding a worksite’s labor dispute to further its investigation or enforcement action on its own without receiving a request.

12. Are there any other forms of immigration relief that might be available to victims and witnesses of workplace disputes?
Some workers may be eligible for additional immigration relief under federal law. For example, certain victims of crime may be eligible for U nonimmigrant status (“U visas”), T nonimmigrant status (“T visas”), and Continued Presence. U Visas provide legal status to victims of certain qualifying criminal activities who have suffered substantial physical or mental abuse, and have information about that crime, and who have been, are being, or are likely to be helpful to law enforcement. T Visas provide legal status to certain victims of human trafficking who assist law enforcement authorities in the investigation or prosecution of trafficking crimes and meet other requirements. Continued Presence is a form of deferred action available to victims of a severe form of trafficking in persons who are a witness in a potential criminal human trafficking investigation or prosecution. DLI may assist certain victims who assist our office with an investigation in seeking protection from immigration enforcement by supporting workers’ requests for U or T visa certification, Continued Presence, or deferred action. As with prosecutorial discretion, a worker must submit these applications to the U.S. Citizenship and Immigration Service (USCIS). USCIS then has the discretion to decide whether to approve that application and ultimately decides whether to grant these benefits.

For more information about U or T visas or Continued Presence, please visit the U.S. Citizenship and Immigration Services website.

13. Can DLI advise me about immigration issues?
No. DLI cannot provide legal advice about immigration issues, or on the benefits and risks of seeking prosecutorial discretion. Individuals should seek immigration law advice before deciding whether to request a Statement of Interest from DLI or whether to submit a request for the use of prosecutorial discretion to DHS. The following website maintains a list of organizations that may be able to help you (please note that this list is not comprehensive, and inclusion does not imply endorsement by DLI): View the Immigration Advocates Network Website.

14. Where can I get more information about DLI’s process?
Questions about the process outlined above may be directed to workrights@maryland.gov. We encourage you to contact us before a request is submitted so we can help you gather information that could be helpful to us.