Deferred Action for Workers? ¡DALE!

Abstract

Immigration-related retaliation is a well-documented consequence for noncitizen workers who report dangerous and unlawful working conditions. Many noncitizen workers are tethered to their employers for legal status and work authorization, and this power dynamic often prevents them from speaking out for fear of being fired or deported. Little academic attention has been paid to a Biden-era initiative designed to assuage the threat of immigration-related retaliation against workers. Deferred Action for Labor Enforcement (“DALE”), created by the Department of Homeland Security in 2023, provides a streamlined process for workers involved in labor investigations to seek deferred action and receive related benefits, including work authorization. By offering a temporary safe harbor to noncitizen workers, DALE encourages cooperation with labor investigations and allows for uninterrupted contribution to the labor force without the immediate threat of removal. This Note examines the legal foundation and future vulnerability of DALE, up against the backdrop of shifting executive immigration priorities. It argues that DALE is a uniquely resilient interstitial tool because it aligns with existing statutory protections for victims of crimes and trafficking, such as U and T visas, while filling the gap created by extensive processing backlogs. Finally, this Note explores the potential for DALE’s rescission and proposes that advocates prepare to emphasize reliance interests. By documenting the economic and social contributions of the more than seven thousand workers currently protected by DALE, advocates can challenge unceremonious policy changes and ensure that the program continues to facilitate Congress’s intent of protecting victimized noncitizens.